European States and regional institutions need to step-up and commit to clear actions to protect the rights of all children to a legal identity and nationality. This includes children born in conflict zones, for whom creative solutions to the specific barriers they face to birth registration and certification are required to prevent childhood statelessness. We think Europe has a key role to play in addressing this issue - here’s why.
Birth registration acts as a pillar to the right to nationality. Although the lack of birth registration does not equate to statelessness, it increases the risk of leaving children without a nationality. Birth registration and certification are key forms of evidence to establishing a child’s nationality because they contain information such as the child’s name, date and place of birth and their parents’ names. This information allows for the confirmation of a child’s link to a State (or States) and their entitlement to nationality based on that State’s nationality law.
Children who are stateless or at risk of statelessness face serious hurdles in accessing rights and services such as social security, healthcare, and schooling. In addition, they may also face an increased risk of exploitation such as child marriage, trafficking, and forced labour. Not only do States in Europe still have steps to take to ensure that their laws and practices promote universal birth registration and certification (as outlined in our 2020 ‘Statelessness Index Thematic Briefing’ on birth registration in Europe), more remains to be done at a regional level too.
In recent research ENS carried out with Dr Rachel Pougnet at the University of Bristol, we explored how barriers to birth registration and certification played out for a very particular group of children born in conflict zones with links to European States: those whose parents are alleged to be ‘foreign fighters’. The difficulties created by the lack of (recognised) birth registration of these children is one of a complex set of factors that puts them at risk of statelessness and further complicates the process of repatriating them, requiring creative solutions and cooperation on the part of European States.
But it is not just in the case of children associated with alleged ‘foreign fighters’ that the issue of barriers to birth registration in conflict zones engages the responsibilities of European States. Children who migrate to Europe have often been born in countries affected by conflict, such as Syria, and some parts of Europe are affected by conflict. Let’s take a closer look at this issue to highlight why urgent action is needed by States in Europe and why regional and external cooperation is vital.
Birth registration and certification in conflicts
The importance of birth registration and civil documentation are only heightened in a conflict. The insecure environment of conflicts and their aftermath make the protection gaps faced by individuals affected by statelessness even more acute. Displacement, within or beyond State boundaries, and the collapse of safety nets such as social services or community support erode safeguards.
For example, the ability to reunite children separated from their families often depends on birth registration documents, which record the place of birth and familial ties. Humanitarian aid is often dependent on a form of registration that requires proof of identity such as a birth certificate. Accessing education, healthcare, or housing when internally displaced or displaced across borders in many cases thus requires civil documentation. Obtaining international protection abroad all too often depends on possessing the proper documentation.
Inability to access birth registration
During armed conflicts, barriers to universal birth registration grow exponentially. Conflict can severely disrupt the administrative systems that record births and other life events or even lead them to disintegrate. Birth records may be destroyed, while accessing the local authorities who do continue to provide civil documentation often becomes incredibly dangerous. Barriers to accessing birth registration that pre-date conflict are often exacerbated. For example, accessing financial and human resources becomes even more difficult, discrimination can become more acute, and penalties for late birth registration put this procedure beyond the reach of families who need it.
Unrecognised birth certificates issued by non-State actors
On top of these challenges common to most armed conflicts, some are particular to the types of conflict we have seen most in recent decades. Today, most wars tend to play out within countries between non-State actors and the central government. In these conditions, we not only see the lack of birth registration and loss of civil documentation as a result of displacement or insecurity, we also witness how civil documentation can be instrumentalised by parties in the conflict to target certain groups. In recent conflicts we have witnessed non-State actors taking over the functions of the central Government and setting-up separate systems of civil registration.
Although the rationale behind this form of ‘mimicry’ of State functions varies, the effects on the ability of the local population to safely obtain (and retain) the civil documentation needed to prove their nationality is gravely impacted. The local population is exposed to serious protection risks, including statelessness, as a result of the targeting of civil registration infrastructure as well as the confiscating or re-issuing of civil documentation. Birth registration carried out, and documents issued, by non-State actors come with their own risks attached. They may not be recognised by the central Government or internationally thus may not provide the evidence needed to establish nationality, or they may be used by other parties in the conflict to identify and target individuals.
Case study: children born in Syria
Already in 2015, the risk of statelessness among Syrian children, both in Syria and abroad, was being described by UNHCR as a ‘ticking time bomb’. The long duration of the conflict, the large numbers of parties to the conflict and fluidity of the territory controlled over time, have contributed to this. The difficulty in accessing (recognised) birth registration is compounded by the fact that Syria is one of the 25 States that retain direct gender discrimination in their nationality laws. When women cannot confer their (Syrian) nationality to their children and war and displacement has left many women as the sole carers of their children, the risk of statelessness for those children is heightened.
Another key aspect of the Syrian conflict, which has complicated the process of birth registration, is that territorial control has shifted between various groups, many of whom have stepped into the business of civil registration. NGOs working in Syria and the region reported that a ‘patchwork of alternative non-State civil registration procedures’ emerged in areas that were not under the control of the central Government. Sometimes, non-State actors actively pursued the development of alternative civil registration procedures, as was the case with, for example, Daesh. Other procedures were supported by Western donors, such as NGO International Legal Assistance Consortium operating with funding from the Swedish Government. Even if the majority of Syria is now under the control of the central Government, large numbers of Syrian children, especially refugees lack documentation.
Case Study: children born in Non-Government Controlled Areas of Ukraine
Issues with birth registration have been reported in Non-Government-Controlled Areas of Ukraine, namely parts of the Oblasts of Donetsk and Luhansk and the Crimean Peninsula. Research published by the Norwegian Refugee Council (NRC) in 2018, indicates that birth and death registration were the most pressing legal issues for the population in Donetsk and Luhansk.
A simplified court procedure was introduced in 2016 by the Government of Ukraine to enable residents of these regions to obtain official State documentation. In practice, this procedure remains inaccessible to many. In 2018, NRC identified the reasons for the lengthy process of this simplified procedure as understaffing and significant workloads of the courts in the region. The procedure takes place in courts in the part of Ukraine under the control of the central Government, so families have to travel to access these courts, which can become very costly due to the length of the procedure. NRC states that in their work they have found that this cost is prohibitive for many families. Moreover, crossing between the regions can be dangerous as families have to travel on roads along minefields, under periodic shelling, and can be faced with long queues at checkpoints where they risk being detained.
In 2018, a law was adopted that allows documents confirming births issued in Non-Government-Controlled Areas to be recognised, but this has not yet been implemented. Documents that register births are issued by the authorities in these regions, but unlike in the case of Syria, little is known about these documents. UNHCR estimated last year that only 45% of children in Donetsk and Luhansk had official birth certificates, a number that drops to 12% for Crimea.
European frameworks for action
It’s clear that regional action by European Institutions and European States has a role to play in addressing these issues. The Council of Europe’s current Strategy for the Rights of the Child refers only in passing to stateless children. The new strategy is currently under development, which is a key opportunity to address childhood statelessness more comprehensively and include actions to promote universal birth registration in Council of Europe Member States and beyond. The recent Committee on Legal Cooperation (CDCJ) and UNHCR conference on statelessness saw fruitful discussion between Member States and other stakeholders, including stateless activists, on possible actions to address childhood statelessness – this must now turn into concrete commitment to actions.
At EU level, the new EU Strategy on the Rights of the Child recognises the risks faced by stateless children and calls on Member States to work towards universal birth registration and certification for all children. Further, Member States are asked to take steps to address statelessness in the context of migration through building the capacity of frontline officials to identify it and respond. The Strategy also calls on Member States to ‘enhance cooperation in cases with cross-border implications, to ensure the full respect of the rights of the child’. In the external dimension too, the EU Action Plan on Human Rights and Democracy 2020-24 calls for support for ‘State authorities in providing legal identity for all, in particular ensuring universal birth registration’. Despite disappointingly failing to adopt Council Conclusions in support of the Child Rights Strategy last month, it remains imperative that EU Member States implement these important commitments to reduce and prevent childhood statelessness in Europe and beyond.
Regional cooperation is key to addressing these highly complex situations. Centring solutions to promote birth registration and certification in (post) conflict zones should be a priority of European States wherever it takes place. Birth registration is after all the cornerstone to promoting the rights of all children. In the migration context, EU agencies need to more effectively identify children affected by statelessness, including through the training of frontline workers, as set out in ENS’ public consultation submission to the EU Strategy on the Rights of the Child and its new Pact on Migration and Asylum. The Council of Europe’s new action plan on child rights and the CDCJ’s initiative on statelessness should incorporate clear commitments to ensuring every child’s right to a legal identity and nationality. In all of this, as ever, ENS stands ready to support regional institutions and European States to put effective measures in place to prevent and reduce childhood statelessness.