Stateless Children: How Do We End the Conundrum of ‘Right to Have Rights’?

Stateless Children: How Do We End the Conundrum of ‘Right to Have Rights’?

Protecting Stateless Children: Are we doing enough?

The growing menace of statelessness is not an alien concept to legal fraternity which recognizes it as one of the the major sources of rights violations across the globe. Stateless people are those who are “not recognized as nationals by any State under the operation of its law.” As per reports, an estimated 10 million people in the world are stateless, out of which almost one third are children. Owing to their statelessness, these children are subjected not only to a violation of the right to nationality, but a chain of violations of other human rights directly attributable to their stateless status. As a result, when these children have no legal status, due to absence of a distinct nationality, they are far more susceptible to trafficking, forced conscription, violence, institutionalized discrimination, and a range of other human rights abuses, from denial of basic rights to more complex ones. The right to a nationality is protected under international law and recognized in key international human rights instruments. In cases of children, the Convention on the Rights of the Child (CRC) is particularly important as it solely protects a child’s right to nationality, by explicitly obligating States to implement this right, in accordance with the principles of non-discrimination which should be vested in the child’s best interests. However, all these years the provisions and obligations have indeed existed but merely on papers. The plight continues with more than 70,000 children in the world being born into statelessness. This article aims to highlight this international concern by analysing the causes, concerns and effect of statelessness on children, while simultaneously pitching forth conclusive recommendations for tackling the same.

Children’s Right to Nationality: International Covenants and Conventions

The right to a nationality is protected under international law with the Universal Declaration of Human Rights specifying under its Article 15 a general right to a nationality. When it comes to treaties, the international human rights treaties which include the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR) and also the Convention on the Reduction of Statelessness, provide particular obligations and regulations for securing the right to nationality for children who have been afflicted with statelessness. Apart from these, even the United Nations (UN) General Assembly, the Human Rights Council and the UN Secretary-General have all collectively tried to address the issue of the right to a nationality through several resolutions and reports. These reports directly deal with the issue of arbitrary deprivation of nationality, and also studies its impact on children, when it comes to nationality-related matters.

Amongst all these, the CRC plays an extremely pivotal role when it comes to the protection of children’s right to nationality as most countries have ratified it. Children’s ‘right to acquire a nationality’ is guaranteed under article 7 of the convention, which also obligates states parties to implement this right “in particular where the child would otherwise be stateless.” Though no concrete stance has been put forth by the Committee on the Rights of the Child as to what it aims to achieve when it presses for a right to acquire a nationality, however, it has been stressed time and again that states have an obligation to take every appropriate measure to ensure that no children are left stateless. The committee has also emphasized that states parties to the CRC must implement children’s right to a nationality in such a way that the best interests of the child are observed without intervening into the sovereign powers of the state. The right to acquire a nationality under the CRC aims to secure that children a right to nationality in their country of birth if they are stateless. In a nutshell, it would mean that instead of leaving the children as stateless they are given what they rightfully as well as legally deserve. As a matter of fact, this principle forms the very core issue of the Convention on the Reduction of Statelessness. Even experts have acknowledged that this method of nationality implementation holds the key to the elimination of statelessness among children, as well as the whole stateless community around the world.

Impact of Statelessness on Children: The Continued Gloomy Silence

The world needs to understand that children of stateless people cannot be classified as stateless too as such a move would amount to an arbitrary deprivation of nationality for children and such a move not only constitutes in itself a human rights violation but adds on to the issues being encountered by these children, particularly when deprivation of nationality leads to statelessness. Also, as all rights ensured to a person flows from his ultimate right to nationality, in absence of nationality there exists no legal basis upon which states have to fairly treat such children at part with how they treat their citizen children. However, we need to even understand that with an exception of certain specific rights, such as the right to vote, contest elections, etc. an entitlement to human rights is not dependent on the nationality of the individual, but rather available to every person by the virtue of being a human. But in absence of stringent laws ensuring the same, even these basic human rights have been practically compromised vis-à-vis to children without a nationality, thus adding to their demise and oppression.

Stateless children are particularly vulnerable to the multiple deprivations of rights caused by a lack of nationality for this leads to a no-accountability situation for the sovereign authorities. Their stateless status means they have no legal personality and have no voice to influence the society they live in, which ultimately means that they are forced to lurk in silence and darkness. The major challenge before these stateless children is the lack of educational opportunities for it deprives them of any future opportunities that they may have of improving their living conditions. There is no denying that there are countries who offer free primary education to stateless children, yet there are even some who exclusively rule such children out. For example, in Malaysia, stateless children from India, the Philippines or Indonesia are denied access to basic education in state schools. The reason behind such denial is the child’s birth certificate that classifies him/her as a ‘foreigner’, and many a times such certificates don’t even exist, as a result of this he/she is simply unable to enrol for education.

One of the major cases in this respect has been, the Yean and Bosico v. The Dominican Republic, in which two applicants, both children, were arbitrarily denied Dominican nationality. Due to this, they were unable to enrol to school as identity documents were a pre-requisite to enrol into an educational institute. The Inter-American Court, which was the jurisdictional authority, was of the view that the Dominican Republic had violated the right to nationality under the American Convention on Human Rights and the two plaintiffs were secured their rights which have been previously violated.

Conclusion: Combating Statelessness and the Way Forward

We have observed all this while as to how international human rights law guarantees the right of every child to acquire a nationality and prohibits arbitrary deprivation of the same. There is no contrary opinion to the fact that a state can exercise discretion when it comes to laws determining the nationality, however, at the same time such laws need to comply with principles of international human rights law, in particular to the fact that they suit a child and are non-discriminatory in every sense. When nationality is arbitrarily denied, it places children in a situation of increased vulnerability to human rights violations. Where children have been, in contravention of international law, arbitrarily deprived of their nationality and rendered stateless, states must ensure that effective and appropriate remedies are available, including reinstatement of nationality.

Prevention is always considered better than cure. This is the central premise of the pre-emptive remedy which advocates the idea of stopping statelessness right before it germinates. The best example of such a remedy is the Convention on the Rights of the Child which mandates  registration at birth, thereby preventing the making of a would-be stateless child. These remedies prove to be very successful as they preclude statelessness in advance of its development. Even though minimization remedies do not result in the elimination or prevention of statelessness and can never be a replacement for the grant of citizenship, they provide some relief in the short run. To understand this better, under the 1954 Convention, States are required to provide identity documents and travel documents to stateless children, in addition to securing their basic human rights.

It’s time that more and more States become a party to the 1954 and 1961 Conventions on statelessness, and abide strictly by the international human rights instruments including the CRC. Also, as mandated by the Target 16.9 of the Sustainable Development Goals, ‘States should ensure legal identity for all’, meaning that the birth of every child within their national borders should be registered immediately so that a failure on their part does not lead to growing statelessness. It is pertinent to note that many States are not ready to ratify the Statelessness Conventions and this coupled with narrow Statist definitions of membership and the reality of multiple social and political identities within States, have made possible the emergence of large number of stateless children. The Universal Declaration of Human Right’s proclamation that “everyone has a right to a nationality” and that “no one shall be arbitrarily deprived of his nationality” has not been one of the more popular provisions of the document. The best example of the worsening conditions for Stateless children, is presented by the Rohingya Crisis. Owing to the reluctance of several Asian countries to ratify Statelessness Conventions and the current crisis of statelessness, it is important for the international community to address this issue by exerting pressure so that these nations adhere to Article 15 of UDHR.

Self-help groups should come up and take up pro-bono litigation on behalf of suffering children. Advocacy for stronger international standards in favor of children’s right to nationality and abolition of discrimination in access to nationality needs to be given more priority. The author, in his personal capacity, as well as experts around the world, are optimistic that with a concerted effort of the international community the growth of statelessness can indeed be prevented and millions of children can be ensured to live a full and dignified life, which would lead to a better future for everyone.

Article by: Raj Shekhar, NUSRL, Ranchi

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