Launch of ENS Campaign - None of Europe’s children should be stateless

He has your infectious smile and your partners bright, warm eyes. He shares your jovial nature and your partner’s ease in connecting with people and making them laugh.  He is intelligent, generous, kind – and a little mischievous. You swell with pride as you watch him play thoughtfully with his toy cars, his imagination transforming your living room floor into a world of adventure. You love him in a way that you find hard to put into words and that has caught you by surprise. Life without him is now unimaginable. Yet you still catch yourself wondering if you have done the right thing. Will he blame you when he is big enough to understand? Will he forgive you? Can you forgive yourself? Every day you worry about his future. Will he be able to finish school? What happens if he’s ever seriously ill? What if his ambition is to be a lawyer or an engineer or a politician? What if he wants a family of his own? The anxiety forms a hard lump in the pit of your stomach and sometimes you have to stop watching his carefree playing because the worry rises to the surface and threatens to consume you. Your beautiful boy is just like every other kid, except for one thing. He has no nationality. He didn't ask to be different and try as you might, you and your partner were powerless to do anything. Your son will grow up stateless.

It seems an unlikely scenario and one that must surely only play out a long way away in a somehow less ‘civilised’ part of the world… but in this region too, statelessness continues to arise because European states are failing to ensure that all children born within Europe’s borders or to European citizen parents acquire a nationality. Childhood statelessness stands at odds with the right of every child to a nationality, as laid down in the Convention on the Rights of the Child – adopted 25-years ago today, on Universal Children’s Day. ENS is taking the occasion of this anniversary to launch its new region-wide campaign ‘None of Europe’s Children should be Stateless’. This campaign will raise awareness and promote measures aimed at ensuring that all children born in Europe or to European parents outside the region can in practice realise their right to a nationality.

Like Quis’ kids, now ages six and nine, who were born and raised in Malta, but remain stateless. As reported in the Times of Malta earlier this year, Quis himself is stateless because he is among a large group of Kurds who were arbitrarily stripped of their nationality in their home country of Syria many decades ago, so he has no nationality to offer his children. His wife Nessrin is a Syrian citizen but Syrian law does not allow women to transfer nationality so she too is helpless to provide a nationality to her children. Yes, these are children of foreign heritage and the law and policies in Syria have played a significant role in their predicament – but they are also Europe’s children, born and bred, attending school and participating in society in Malta.

Like Drita’s nine children, none of whom are recognised as citizens in their home country of Serbia, or anywhere else. Drita, a Roma woman, has only recently – and after a lengthy struggle culminating in a court procedure – acquired a birth certificate for herself. She had been living without any personal documents because the birth registry in Kosovo in which her birth had been recorded was destroyed. Before she is recognised as Serbian, however, she still needs to complete further long and uncertain procedures relating to the registration of permanent residence and determination of citizenship. Until she can win this battle for herself, she is powerless to help her children resolve their statelessness. But for Drita’s children and hundreds more like them, Serbia is the only country they know and the place they call home.  

Like Elżbieta’s 17-year old daughter, Marysia, brought home from an orphanage when she was just a toddler, but still stateless today as she stands on the cusp of adulthood. Her story was told in the Polish press last July. Marysia was abandoned at a Polish hospital, immediately after birth. All that anyone seems to know about her birth mother is that she was not from Poland – the Doctor’s wrote Romanian on her mother’s hospital record. But Marysia is not recognised by the Romanian authorities as a citizen and it took a long legal battle for Elżbieta to get even a residence permit for her daughter, even though she was born in Poland and is being raised by a Polish couple. Elżbieta’s last hope in solving her daughter’s statelessness is to wait for the outcome of an exceptional procedure through which the President may, at his discretion, award citizenship.

Like Lin’s two young children, a boy aged 4 and a newborn girl – both born in the Netherlands, both stateless. Lin was only a child herself when, at age 14, she was trafficked from China to the Netherlands. Her parents never registered her birth because of the restrictions of the one-child policy and they were hoping for a son. After being rescued from exploitation and testifying as a witness in the prosecution of her traffickers, Lin tried several times to get the Chinese authorities to confirm her nationality, but they will not recognise her as a citizen. Her children were then unable to acquire a nationality at birth. Although her son, at age 4, is now eligible for Dutch nationality under a special safeguard in the law for stateless children born in the country, the authorities have registered him as ‘nationality unknown’ and this is preventing him from invoking the special provision that is designed to protect him from growing up without a nationality.

None of these parents chose for their children to be stateless – in fact they have been fighting to do everything that is within their power to secure a nationality for them, it was simply beyond their reach. They all fear for what a life of statelessness could mean for their children: hardship, questions, suspicion, denied opportunities, unfulfilled potential, a sense of never quite belonging. No parent should have to experience this anguish. No child needs to be stateless. There are a number of simple measures that governments can be take in order to ensure that children who would otherwise be stateless and who have a clear connection to the country, by birth or parentage, are not left without  a nationality. The new ENS campaign launched today seeks to promote these measures and to raise awareness of the need to tackle childhood statelessness so that we can put a halt to the spread of statelessness in the region. If we can achieve this, we will have taken the first critical step towards ending statelessness in Europe.    

Earlier this year, ENS released a report on Childhood statelessness in Europe: Issues, gaps and good practices. This report concluded that although most of Europe’s nationality laws notionally include safeguards to protect against the risk of statelessness, in reality children continue to be born stateless across the region. ENS is committed to helping to change this picture by: raising awareness on the importance of and measures to prevent childhood statelessness, working with the child rights community to foster a more active engagement on the issue of children’s right to a nationality and promote relevant international standards, conducting further research in order to fully identify what gaps exist in law, policy and practice and developing a better understanding of how problematic birth registration procedures are connected to issues of childhood statelessness. A special feature of this campaign will be an outreach programme to schools and youth to help to raise the profile of the issue and to engage youngsters in creating a platform for change.

Over the coming months, ENS will focus on the research dimension of its campaign work. A number of country studies will be carried out to explore how, when and why children are being left without a nationality and what can be done to address this. ENS will also promote research into cross-cutting issues that affect the problem of childhood statelessness across the region. To this end, ENS will convene a regional conference on the children’s right to a nationality in Europe in June 2015 to discuss the challenges and opportunities around ending childhood statelessness. This will provide a venue for the discussion of ENS’ own research findings, but also for the presentation of relevant research conducted by scholars, NGOs and other experts (a call for presenters with full details will be issued early in 2015). The conference will also be the launch-pad from which ENS will embark on broader and more public-facing campaign activities as part of the second phase of its campaign aimed at strengthening frameworks for the prevention of statelessness among Europe’s children.

If you would like to learn more about the ENS campaign ‘None of Europe’s Children should be Stateless’ and how you can get involved, please email info@statelessness.eu. You can also write to this address to be added to the mailing list for updates about campaign activities and the forthcoming conference.

Laura van Waas, Campaign Consultant and member of the ENS Advisory Committee; Senior Researcher and Manager of the Statelessness Programme

[This blog first appeared on the website of the European Network on Statelessness]

Every child belongs

When raising awareness of the importance of birth registration, organisations like Plan and UNICEF have done a good job of devising compelling slogans, like “Count every child” and “All children deserve to celebrate their birthday”. The message is that every child has the right to recognition of their existence and proof of the facts of their birth as provided through birth registration. This can be critically important for the enjoyment of all sorts of child rights, from protection against early marriage to access to childhood immunisations. These kinds of slogans have the power to portray the importance of what is really a rather dry and technical administrative act to a wide audience in just a few words. Impressive.

Last week I was in Geneva to help teach a specialised short course on Statelessness and Child Rights – a collaborative project of the Statelessness Programme of Tilburg University, UNHCR and UNICEF, piloted for the first time. While I was there, I spent quite a bit of time pondering whether and how we could adopt a similar technique to that above to communicate core messages around statelessness. Just as the human rights language “every child has the right to birth registration” has been translated into the demand to “Count every child”, can we turn the “right of every child to acquire a nationality” into a more meaningful call to action?

Unfortunately, many of those who work on statelessness – including myself – are lawyers by training, rather than communications or public information experts. Yet, as governments, UNHCR, other UN agencies and civil society groups start to engage on the issue more actively, knowledge of statelessness is quickly spreading beyond the lawyerly circles and other expertise is being brought in to operationalise policies to fight statelessness. So, no doubt we will start to see the emergence of increasingly sophisticated ‘marketing’ techniques and hopefully a simplification of the language around statelessness. Already, we see a move away from the message – sadly all too common in older publications – that “statelessness is a highly complex legal issue”. Because, quite frankly, birth registration is a highly complex legal, social, economic and sometimes political issue, but that’s not a particularly helpful way to introduce it to a new audience, which is why Plan and UNICEF have found a different approach.

The challenge then, is to work harder to explain statelessness, or at the very least the importance of fighting statelessness, in a way that any audience could understand and internalise it. This is a vital first step, because without some sense of what the problem is – and that it is a problem at all – no-one will be very motivated to invest the time to learn more about it or take action to address it. For this, we need to take a step back from the legal complexity and look at it from a more down to earth perspective.

One fact that I find particularly compelling and which was emphasised throughout the course on Statelessness and Child Rights is that, in any given year, the vast majority of new cases of statelessness are amongst children. Stateless parents are often powerless to prevent their plight from being transmitted to the next generation. If we are ever to crack this problem and realise the right to a nationality for all, we must stop this senseless spread of statelessness.

What’s more: children affected by statelessness did not choose to be outsiders. Nor do they somehow exist as free radicals without any attachments to a family, a community, a place or a home. They have the same connections as anyone else. They have a country. They belong. Yet their government is letting them down, right from the start, by failing to ensure that this belonging translates into a nationality – a legal bond which formalises their membership of the community and provides protection, rights, empowerment, a sense of acceptance and inclusion. As momentum grows to address statelessness and people from an increasingly diverse range of backgrounds and disciplines, with different skills to offer, join the cause, I hope that there will be a greater effort to distil these types of simple messages and that someone with the know-how to do so will translate them into clever and compelling slogans to help spread the word.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

[This blog was originally drafted for and posted on the website of the European Network on Statelessness, see www.statelessness.eu] 

GUEST POST: Childhood in the Migrant City

What are the implications of statelessness for children’s everyday lives? Does the experience of statelessness differ qualitatively from that of ‘illegality’? How do children of migrants and refugees come to terms with the implications of their ‘foreign’ status as they grow up in a country largely hostile to their presence?

These are the some of the questions that I am currently exploring through fieldwork with children in the Malaysian state of Sabah, northeast Borneo. During the 1970s and 80s, thousands of Filipinos arrived in Sabah as refugees from the civil war in the southern Philippines. Later, many more Filipinos came to the state as economic migrants. At the same time, thousands of Indonesians have arrived to work on plantations, in factories or in domestic service, often following old networks of connectivity between Borneo and Sulawesi. Many of these foreign workers and refugees have married and had children in Sabah. However, a combination of different factors (including parents’ undocumented status and uncertainties regarding processes of registration) means that many of these children are stateless.

I arrived in Malaysia in August 2012 and will be here until August 2013 conducting fieldwork with the children of Indonesian and Filipino migrants and refugees. Based in the city of Kota Kinabalu, my primary methodology is that of participant observation: talking to children (in Malay), observing as much as possible of their lives, meeting their families and friends. Each week, I visit a number of different learning centres that provide education to the children of Indonesian and Filipino migrants. Through these learning centres I have got to know a wide range of children with very different experiences of illegality, exclusion and belonging, and with quite varied connections to their parents’ home country. I have discovered that families often have mixed statuses, for example, with some siblings having Malaysian citizenship (often through complex processes of ‘adoption’) and others being stateless, or with mothers sacrificing their own legal status in order to prioritise paying for their children’s documents.

Of course, uncovering children’s own perspectives on illegality and citizenship is by no means straightforward. I am currently working with children aged 8 to 18 and hope that working with this range of ages will allow me to track the gradual emergence of understanding amongst children about their situation. In addition to the conventional anthropological techniques of participant observation, I am also employing a range of different methods designed to engage children and to utilise their strengths. These include drawings, worksheets (for example, asking children to compare Sabah and their parents’ home country) and simple questionnaires. These methods have to be continually adjusted for different levels of literacy, and, as far as possible, I always try to discuss children’s individual answers with them. I have held brainstorming sessions with groups of children where each child is given different-coloured ‘Post-It’ notes to write down or draw what, for example, they are worried about. Recently, because of some difficulties in gaining access to urban children’s lives away from school, I have been lending children digital cameras and asking them to take photographs of what is important to them. After giving them copies of the photos they take, I also ask them to comment, in written or verbal form, on why they chose that picture. One girl photographed the welding workshop where her father works and where her family lives in a small, makeshift house. Next to this she wrote, ‘I don’t have any friends where I live’. Another photographed herself on top of a pile of rubble in the quarry where she lives and wrote, ‘I think this quarry is quite a beautiful view, don’t you?’

Not only are learning centres excellent venues for meeting and talking with children, education itself is a key concern of my research. Although Malaysia is a state party to the UN Convention on the Rights of the Child, it maintains a reservation on Article 28, the obligation to make primary education compulsory and available to all. Since 2002, ‘foreign’ and undocumented children have had virtually no access to public education. In my fieldwork so far, I have talked to many young people who remember when their education was cut short and they were asked to leave Malaysian government schools. I have also researched parents’ strategies for finding schooling for their children, have visited the different learning centres available to undocumented and stateless children in the city, and have spoken with children who have stopped or never been to school. Given the broader exclusions of statelessness, I am hoping to be able to write about both the possibilities for education to offer a route to personal ‘freedom’, and the constraints on the life-enhancing potential of education in the migrant city of Kota Kinabalu.

However, whilst researching the exclusions and problems that children face, I am also keen to counter the assumption, found in some advocacy work, that stateless or undocumented children are somehow ‘lost’, or lacking an identity. Although many children speak about the boredom of immobility, of being confined to the home because they cannot travel freely, they also have strong family ties and a strong sense of their family’s cultural background. When I gave out ‘holiday diaries’ to a group of Indonesian children, I was struck by how many of them wrote about food-filled visits to a wide range of extended family members in Sabah. Attending Filipino weddings, I have seen Suluk children competently and confidently performing traditional dances to large audiences. Other children record these dances on mobile phones and play them back at later occasions, discussing the merits of different dancers. I have also been reminded of the contingencies of national identity by an 11 year-old boy who, when asked what ethnic group he was from, looked fiercely at me and exclaimed, “I am a person from here!”

Work – particularly that of parents – is a key, emerging theme of my research. Many parents work very long hours, often every day of the week, and children become used to taking care of younger siblings, or to helping parents at their workplace. In my final months of fieldwork, I plan to focus my attention on children’s own work. I will be looking at three main groups, assessing the importance of work, and the relative impact of statelessness or illegality on work experiences and choices. These are: those teenagers who have finished school and are working full-time, those children who combine part-time work with schooling, and those who are working and have had no or little schooling. Such places of work include coffee shops, factories, car washes, and furniture workshops, and promise to yield further insights into the everyday lives of children growing up in a migrant city.

 

Catherine Allerton, Lecturer in Anthropology at the London School of Economics

[Catherine can be reached at c.l.allerton@lse.ac.uk]

 

 

 “This is my old house. I don’t have any friends where I live.” (13 year-old Indonesian girl)

 

A Suluk/ Tausug girl’s photo of the Filipino squatter settlement where she lives.

Punished for not having a Jordanian father

I have been working on the issue of statelessness for several years now.  During this time, I have focused mainly on legal research and awareness raising work, and I have been continually fascinated by the legal intricacy statelessness unfolds.  Despite this interest, and despite having done previous field research on the issue, I do not think I truly comprehended the extent of the problem of statelessness until now.  Through my involvement in a project co-ordinated by the Women’s Refugee Commission, conducting advocacy-oriented research in four countries that maintain or have recently removed gender discrimination from their laws, I have had the opportunity to spend time with affected families.

I am now coming to the end of my stay in the first country of research: Jordan.  Here, women are not entitled to transmit their nationality to their children so, in a variety of circumstances, children of Jordanian mothers end up stateless. My time here has emphasised how, as well as being a legal, political and theoretical conundrum, statelessness really is a major humanitarian problem.  Having compiled nearly 50 testimonials and facilitated several focus group discussions, I have discovered something unique in each story and the problems it highlighted.  Women’s inability to confer nationality has affected each family differently, but it has also affected each family severely.  

I have sat in houses listening to women explaining how their children have, over the years, become increasingly ill as access to free healthcare was barred due to their lack of nationality.   Added to this, as they are not Jordanian citizens, these children rarely have access to assistance provided by charities.  I have been amongst young disillusioned men who are repeatedly arrested and temporarily detained as they carry no ID documents –being children of female Jordanian nationals gives them no right to identity papers.   I have been in houses where the men sit all day at home, with no hope of finding legal employment, and seen foreign husbands who have to choose between remaining unemployed or working and risking deportation because they can’t afford expensive work permits.

Many of the families I met lived in very poor areas.  Statelessness in these areas has one thing in common - it protracts, prolongs, and exacerbates this poverty.  However it was not a problem exclusive to the poor.  There was also the college student I met who was not able to travel because of her situation, and whose mother worried as she could never inherit from her family, since registering anything under her name is impossible.

Whilst in Jordan I also heard of a high-profile case of a Jordanian women who was attempting to commit suicide by jumping off a bridge.  Her husband and children are trying to cross the border from Syria to Jordan to escape the violence.  They, however, were refused entry.  Putting aside regional politics, the fact that the man was married to a Jordanian, or that the children had a Jordanian mother, meant nothing.   Not only can the children not obtain Jordanian nationality, they do not have the right to even enter their mother’s country under extreme humanitarian circumstances.  

Not having the right to confer nationality to your children is often framed as a women’s rights issue. In the Levant region there has been much positive action and a variety of initiatives have sprung up to try and repeal this gender discrimination. And yes, it is clearly a gender issue, but this should not overshadow the fact that it is also so much more.  It becomes a child’s rights issue when you ask a nine year old boy what he wants to be when he is older, and he replies that he can’t continue school for long, so nothing.  Or when a two month old newborn is ill and coughing in the cold but has no access to free healthcare anywhere, as she is not a citizen of anywhere.  Furthermore, it is often the men that suffer the most from this discrimination in the region.  In addition to not being able to work and provide for their families, most families said they would only allow their daughters to marry citizens, so that they would be able to become Jordanian and the next generation’s access to nationality is also assured. For the stateless sons, the future is bleak – men have no hope of acquiring nationality through marriage and their children are doomed to inherit their condition.

Sitting in these houses and being amongst these families, gaining a very brief glimpse of the day to day, year to year, generation to generation struggles they experience highlighted how this really is a serious problem everywhere, with still so much more to be done.  One sentiment however that I heard from the majority of these families was their continued optimism that there can, must and will be a reform of the nationality law.  A sentiment that I have taken away too.

Zahra Albarazi, MENA nationality and statelessness expert, Statelessness Programme

ABOUT THIS PROJECT:
This is the first phase of the project The Statelessness Programme is conducting as commissioned by the Women’s Refugees Commission. The next stage of the study will be conducted in Morocco.  Discrimination in the nationality law was removed there in 2007 and the research hopes to discover how this amendment is being implemented and how it has impacted on the lives of the families who had been affected by this discrimination. The full findings of this project, alongside the video component will be available later in 2013.

Photo taken during a focus group discussion - most of the meetings were in people's homes, but this group met in relatively posh surroundings

GUEST POST: The benefits of birth registration to children, youth and governments

Plan is an international child-centred community development (CCCD) organisation, working across 50 countries in Africa, Asia and the Americas.  The United Nations Convention on the Rights of the Child (CRC) recognises that every child has the right to be registered immediately after birth and has the right to preserve his or her own identity through a nationality, name and family ties. In 2005, Plan officially launched its first global UBR campaign, now renamed ‘Count Every Child’ which has had a major impact globally on engaging communities and governments in birth registration. Plan also plays a pivotal role in influencing and strengthening the work of key human rights bodies in promoting adequate implementation and monitoring of the right to birth registration by states. In addition, Plan’s work on birth registration has led to the development of some important global partnerships such as with UNHCR on linking birth registration to statelessness.

Despite these achievements, little is still known internationally about the benefits birth registration can bring to children, youth and governments. Poverty and social disadvantage play a key role in determining which children are not registered and where. Global studies have empirically established that unregistered children tend to be poor, live in rural areas, have limited access to health and education and suffer from higher rates of malnutrition and mortality. Other primary research has also highlighted the many barriers to birth registration such as ethnicity and gender, rurality and cost. There is arguably now a growing consensus among international organisations working on birth registration about the groups of children most affected by non-registration and the barriers these children face in realising the right to birth registration.

The Committee on the Rights of the Child, the leading international authority on child rights, has interpreted the right to birth registration as helping to realise a range of other connected child rights linked to health, education, social welfare, work and the juvenile justice system to name just a few.  Plan and other international organisations have repeated this interpretation by long recognising birth registration as a tool to protect children from exploitation, such as child labour and child marriage, and as a means for children to access basic services such as health and education. There are numerous anecdotal examples of this analysis. For example, in some contexts schools have been known to refuse admission to a child, or to only temporarily admit them, until a birth registration certificate is produced. UNICEF has noted that although birth registration is linked to an array of rights and protections, ‘the exact linkages of cause and effect between the impact of birth registration and all these issues require much more research’. This view has been repeated by some commentators who have suggested that with the international community’s spotlight aimed at increasing registration rates, research needs to evolve in order to assess the benefits that birth registration delivers.

The importance of birth registration does not end with childhood. Birth registration also provides assistance in securing benefits and opportunities for youth. It has been anecdotally cited as a prerequisite for acquiring more ‘advanced’ or ‘sophisticated’ benefits and associated opportunities such as social security numbers required for employment in the formal sector, registration of a business, the ability to access credit, to open bank accounts or to be eligible for microfinance assistance and loans. In this context, Plan realises that birth registration could be important to youth, one of our key beneficiary groups, and its associated programmes, namely those focused on economic security. Birth registration can also be said to play a crucial role for the state. The Committee on the Rights of the Child regularly cite the need for robust and reliable statistical data for development planning and governance as well as the monitoring of progress towards realising child rights. Good governance requires that expenditure is allocated according to need and accurate population statistics arguably provide a means by which states can achieve this. Without accurate statistics, it may be hard to measure progress towards development indicators such as the Millennium Development Goals.

To help fill these research gaps, Plan International is seeking to appoint a multi-disciplinary team of consultants to undertake multi-country research to investigate these issues (autumn 2012). If you are interested in applying please see the Terms of Reference below for detailed information which provides key background information on the identified research gaps as well as the research objectives and research questions: http://plan-international.org/about-plan/consultancy-research-to-determine-the-benefits-of-birth-registration.

Applicants should submit an application package by the 16th September 2012 via email to lucy.gregg@plan-international.org

This Blog was prepared by Lucy Gregg, Research Coordinator at Plan International

GUEST POST: Myanmar - State of Statelessness

Nationality is a legal bond between a state, while statelessness refers to the condition of an individual who is not considered as a national by any state.

Myanmar (Burma) has one of the world’s largest populations of stateless people and this is a massive problem because statelessness has a terrible impact on individuals by depriving them of enjoyment of the full range human rights, i.e. individuals are generally blocked from obtaining employment, education, health care services and so forth. This problem of statelessness in Myanmar (Burma) and in the rest part of the world emerges due discriminatory and inadequate nationality laws. The leading approach in the fight against statelessness is ratification and implementation of various international norms related with nationality and statelessness provided by United Nations and other international organizations, e.g. Convention on the Reduction of Statelessness and Convention Relating to the Status of Stateless Persons, as well as others such as European Convention on Nationality or Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws.

The legal analysis of Myanmar’s (Burma) domestic nationality law enables to conclude that this county is very distant from the international standards in nationality field, because it has not ratified either of aforementioned statelessness Conventions which are vital to the battle against statelessness and which regulate many severely vulnerable areas.

Myanmar (Burma) has only acceded to the Convention on the Rights of the Child and Convention on the Elimination of All Forms of Discrimination against Women. However, norms of these Conventions are very laconic and regulate just very specific aspects of statelessness problem, thus, providing far less benefit than the ratification of, for instance, Convention on the Reduction of Statelessness would. What is more, Myanmar (Burma) even fails to implement those several international obligations which it has undertaken: Article 7 of Convention on the Rights of the Child prescribes that a child has the right to acquire a nationality and States Parties are obliged to ensure the implementation of this right under the relevant international instruments, in particular where the child would otherwise be stateless. However, Myanmar (Burma) has not adopted any measures or mechanisms for this.

So, if Myanmar (Burma) fails to implement its own obligations, it is meaningless to expect that this country could take into account other international principles and standards which are not applicable within its territory. The legal analysis confirms that. For instance, Burma’s Citizenship Law does not ensure nationality under Article 1 and 4 of Convention on the Reduction of Statelessness to a child born outside or inside the country, if otherwise stateless, and does not at all regulate the question of abandoned children under Article 2 of Convention on the Reduction of Statelessness or Article 14 of Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws. Sadly, Burma’s Citizenship Law does not provide facilitated naturalization for stateless persons as it is required by Article 32 of Convention Relating to the Status of Stateless Persons, as well. The possibility to naturalize as a citizen of Myanmar (Burma) is not even vested for foreigners.

The worst part of the Myanmar’s (Burma) nationality laws is racial discrimination. According to Burma’s Citizenship Law provisions, the citizenship of Myanmar (Burma) is granted only to certain ethnic groups that have settled within the State in a certain period. Moreover, the Council of State may decide independently whether to grant citizenship to any ethnic group or not. These provisions apparently contradict international norms which forbid  to deprive any person or group of persons of nationality on racial, ethnic, religious or political grounds.

Notwithstanding, there are aspects in which Myanmar (Burma) does better. For instance, its nationality laws provide some safeguards against statelessness in the context of loss of nationality. One of the most significant norms is Article 15(a) which ensures that citizen would not automatically lose his citizenship merely by marriage to a foreigner. This norm accords with international standard that any change in personal status (like marriage) should not affect a person’s nationality and if it nonetheless does, such change should be conditional upon not rendering the person stateless. A noticeable achievement of Myanmar’s (Burma) nationality law is non gender-sensitive norms, as well.

Taking everything into consideration, it is obvious that Myanmar’s (Burma) nationality law lacks attention to international principles and standards related with nationality and statelessness and is more incompatible with them than consistent. Therefore, United Nations and other international organizations have to work with Myanmar’s (Burma) government and persuade it to ratify more international Conventions on nationality and statelessness. 

Simante Tomkeviciute, Student of the course 'Nationality, Statelessness and Human Rights' offered by the Statelessness Programme at Tilburg University

'Best interests of the child' as a uniting principle for citizenship

When thinking about the Oecumene project, I reflect on what binds us together and what separates us in terms of our experiences of citizenship around the world. In my last blog, I wrote about the shared experience of statelessness, which has regrettably become a truly global case study for exploring how the absence of citizenship affects people. This time, I’d like to share some thoughts on another common or shared experience relating to citizenship, which caught my attention thanks to a recent decision of the African Committee of Experts on the Rights and Welfare of the Child. It would seem that, whether we are perusing international legal standards or delving into the domestic citizenship law of any state picked at random, one notion emerges as a uniting principle: the best interests of the child.

Every citizenship law includes provisions that regulate the attribution of a nationality ‘of origin’ or ‘by birth’- i.e. the granting of citizenship to a newborn child, providing that the child is linked to the state in some way. Thus, whether nationality is conferred under a particular law on the basis of parentage, place of birth or a combination of both, all states seem to agree on one thing: children should, in principle, acquire a nationality at birth. This approach is so universal as to go largely unquestionned. It seems simply to make sense to us that a child acquires this part of his or her identity immediately, even if this is bestowed without consultation or regard for the legal consequences that holding of a (particular) nationality may entail for the individual in later life. Only rarely does someone, perhaps a political scientist or a legal philosopher, query whether this is proper [see for instance The birthright lottery, Schacher, 2009]. Admittedly, there will be other motives for states to confer nationality at birth in this manner – not least the need to maintain a body of citizens in order to continue to exist as a state, a population being one of the constituent elements of statehood. Nevertheless, we can already cautiously conclude that this universal and mostly uncontended approach to citizenship also reveals the value that we place on the possession of a nationality. Perhaps this state practice is, in other words, evidence that to have a nationality – even an enforced one – from birth, is in the best interests of the child.

Such a conclusion is reinforced when the we dig deeper and see what importance is given by states, both individually and collectively, to the avoidance of childhood statelessness. I could name no more than one or two citizenship laws that do not encompass at least some form of safeguard to ensure that children do not become or remain stateless. True, many of these safeguards are inadequate, incomplete and often poorly implemented. Yet at a basic level, their very elaboration supports the idea that states see statelessness to be generally incompatible with the best interests of the child. Turning to international law, the principle of the best interests of the child becomes explicit. It is central, for instance, to the Convention on the Rights of the Child [article 3], which asks for the best interests of the child to be ‘a primary consideration […] in all actions concerning children’. As such, this overall principle applies to the enjoyment and therefore the interpretation and application of all rights under the convention, which includes the right to acquire a nationality [article 7]. This verifies the above assertion that states view the enjoyment of citizenship to be in the best interests of the child [see also, for instance, the 1961 Convention on the Reduction of Statelessness, articles 1-4].

This brings me to the recent decision of the African Committee on the Rights and Welfare of the Child which considered the situation of children of Nubian descent in Kenya [issued 22 March 2011]. Throughout the text of this decision, the best interests of the child was a recurring theme, relied upon by the Committee at numerous junctures to shape its ruling and place the children in question centre stage. The best interests of the child ‘demanded’ that the Committee consider the communication that had been brought to them on behalf of the children of Nubian descent. The best interests of the child also justified ‘an exception to the rule on exhaustion of local remedies’ in this case, because the children had been left in limbo for too long due to stagnation within the domestic court system in Kenya. And the best interests of the child was taken into account at every stage of the interpretation of Kenya’s obligations with regard to the right of a child to acquire a nationality under the African Charter on the Rights and Welfare of the Child [article 6]. The best interests of the child led the Committee to conclude that the practice of leaving children of Nubian descent without a nationality until they complete certain procedures when they are 18 years old is in violation of the African Children’s Charter. Continuing this line of reasoning, the Committee declared that the state has an obligation to implement safeguards against childhood statelessness (in the African context, a jus soli fall-back clause) ‘proactively’ and to prevent statelessness ‘as much as possible from birth’, because this is in line with the best interests of the child.

This case is one of the best examples to date of the concept of the best interests of the child being applied specifically – and explicitly – in the context of citizenship. But it is only one expression of what is emerging as a uniting principle, rooted in state practice, articulated in the aspirations of international law and gaining greater prominence in the battle against statelessness [see for instance the UNHCR expert meeting conclusions on the prevention of childhood statelessness, 2011]. It is food for thought that even if we don’t all share a common notion of what citizenship is and who should enjoy it, we do all seem to agree that it is something that no child should go without.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme
[This blog post was first published as part of the OECUMENE Project and can be found here]

The stubborn cloak of legal invisibility

In the context of the gripping tales of Harry Potter, the invisibility cloak is a magical object. It offers Harry the opportunity to enjoy some innocent adolescent mischief, while it also provides a snug layer of protection when his life is in danger. This is undeniably the invisibility of childhood fantasy and part of its charm and security lies in Harry’s ability to cloak himself in it, or reveal himself, at will. As such, it is difficult to think of a starker contrast with the phenomenon of legal invisibility, which imposes itself uninvited on its victims, is stubbornly resistent to efforts to lift its cloak, creates vulnerability rather than protection and can destroy the innocence of childhood.  

I have just returned from a conference in Belgrade, organised by Praxis – an NGO which is to be praised for both the high quality of its work and its incredible dedication to the human rights issues it seeks to address. For many years now, Praxis has been pushing for a solution to the situation of people in Serbia who lack legal personhood, for whom it has coined the evocative and fitting phrase “legally invisible”. They are people who lack any official recognition from any state authorities of their existence and of their identity. No birth certificate. No ID card. No citizenship document. Nothing. When trying to exercise any right under the law, they are confronted with the problem that legally, they don’t exist – they are invisible to the law. As such, they cannot exercise rights to health care, social welfare, housing, education, they cannot vote in elections, get married legally, register their children or appear as parties before courts or other state bodies, etc. Without recognition of the facts of their birth, or indeed, existence, these “legally invisible” people will often also find themselves at risk of statelessness, because their position under the applicable nationality laws cannot be formally established.

Praxis’ reports and a short documentary film which they have just put together (and we hope will be shared online), use a range of individual case studies to illustrate the ways in which people become legally invisible and why it proves to be such a difficult problem to shake. Here are two examples from recent reports:

Djulijan and Senad Case – Djulijan was born in 1999 in Kosovo Polje and had never been registered into birth registry book. He was admitted to hospital in Belgrade in 2006 using a “borrowed” health card. As a “legally invisible” person, Djulijan could not obtain health insurance, so his parents were forced to “borrow” a health card from their cousin Senad, born in Kragujevac in 2001 and registered into birth registry book […] In August 2006, Djulijan died in hospital, but the fact of death registered into the birth and death registry books was that of Senad, not Djulijan. […] Today, Senad is seven years old and lives as a “legally deceased” person, so he will not be able to enrol in school, receive medical treatment if necessary, or exercise other rights. Djulijan, on the other hand, lived and died as a “legally invisible” person.

Sabaheta Case – Sabaheta was born approximately 24 years ago, at home, as a child from a common-law [unregistered, informal] marriage. Her mother Nurija abandoned her soon after and went to Germany. Sabaheta grew up with her grandfather Miftarem. Today, she lives as a “legally invisible” person with her common-law husband and three children in a Roma settlement in Novi Sad. Sabaheta is not sure whether she was born in Montenegro or in Kosovo. Apart from her mother’s name, she is not acquainted with any other data about her parents. She neither has relatives from whom she could perhaps get these data and obtain mother’s documents. The only recorded evidence on Sabaheta’s existence is a letter of the Social Welfare Centre Niksic, Montenegro, sent to the Social Welfare Centre Zrenjanin in 2006 in which it was stated, inter alia, that Sabaheta is approximately 17 years old and not registered in birth registry book. Besides, she also possesses a certificate confirming that she is not registered in birth registry book in Niksic.

In its reports, Praxis goes on to explain the steps that it has helped people to take in order to establish their legal identity and lift the cloak of invisibility. More often than not, the legal proceedings they initiate are to no avail as the administrative authorities demand a whole host of substantiating documents that the applicant simply cannot produce. The procedures can also drag on for years and there are plenty of examples of legally invisible people submitting a request for so-called “subsequent registration” (i.e. late registration into the birth registry as the key step that formalises their legal existence), which is refused, appealed, sent back to the first instance body for review, refused again, appealed, etc etc. It can be heartbreaking work for the legal assistance team at Praxis and it is mystifying to hear how difficult it is to obtain official recognition from the authorities that a person is indeed living and breathing in front of them.

Unfortunately, it is not only in the small state of Serbia where people are cast into legal invisibility. In my own first encounter with Praxis, at an event on statelessness in the spring of 2010, I slipped into an easy conversation with their inspirational Executive Director Ivanka Kostic. We quickly discovered that the issues she was confronted with bore an uncanny similarity to the situation I had discovered in Lebanon, where I was working at the time. In Lebanon, there is also a significant problem of legal invisibility, affecting a group described in Arabic as Maktoum al kayd, or “unregistered”. In a 2007 newspaper article written by Fatima Rida, the description of one such case is telling:

Malik has vanished from under the bridge where he used to sleep. His disappearance was accompanied with uncertain details that eventually turned into negative signals, especially as it became certain that he has not gone to jail for the “eight” time. “We let him down…so he left and never came back”, bitterly spoke the social worker as she spoke of Malik who frequented her office at a social service center in the southern suburb of Beirut two years ago. The young man had promised her to stop mutilating himself every time the police confronted him “while he waited for an identity card that would shield him from the torture of detention and jail for the eighth time on the charge of homelessness.” He was “accustomed” to pulling a razor he constantly kept on him to cut his hands and legs to keep the police officers away from him because “no one wants me to die in his arms, so they let me go” as he used to say. On the last occasion, the social worker had to inform him that his legal motion to obtain him an identity card was rejected despite all efforts. She adds, “he looked at us as if he knew the answer. Then he left…and vanished after a another clash with the security forces.” [translation from Arabic text published in Al Hayat]

It is unusual for the media to report on this phenomenon and the situation in Lebanon has not received much press since this piece was printed. However, by strange coincidence, on the day that I was in Belgrade, discussing Serbia’s invisible people with Praxis and colleagues from across Europe, a new article appeared in a Lebanese newspaper about the legally invisible there and their exposure to statelessness. There is still much that needs to be understood about the situation in Lebanon and  in Serbia, in order to get to the bottom of why these cases are proving to be so difficult to resolve and why the cloak of legal invisibility is such a stubborn one. And of course there is also a wider and pressing question: who else will Ivanka or I find outselves sitting next to in meetings in years to come, only to discover new stories of legal invisibility in other countries around the world?

Laura van Waas, Senior Researcher and Manager, Statelessness Programme