Europe must not allow its children to grow up without a nationality

How do you explain statelessness to a child?

Yes, you were born here. And yes, mummy comes from here. And yes, daddy comes from here. And yes, you speak our language. And yes, you celebrate the same festivals as us. And yes, you look just like all the other children who live and play in your neighbourhood.

But no, you are not really one of us. You are not officially a member of our community. You are an outsider. You are an alien. And no, there is also no other place for you to belong. You are stateless.

That’s a tricky thing to explain, but harder still to justify. It’s a sad fact then, that of the 10 million plus stateless people worldwide, it is estimated that half are children: born and now fast growing up without a nationality. How is this even possible when as early as 1930, governments were drawing up international agreements in order to ensure that no child is left stateless? How is this possible when many decades ago, childhood statelessness was already identified as an entirely avoidable problem and the necessary preventative measures were already known (e.g. the norms found in the 1961 Convention on the Reduction of Statelessness)? And perhaps most intriguingly, why has ‘even’ Europe not succeeded in staving off this problem, despite additional regional agreements that guarantee children’s right to a nationality (e.g. the norms found in the 1997 European Convention on Nationality)?  

The truth, like it or not, is that Europe is still a ‘producer’ of statelessness. Day to day, this may no longer be on the same alarming scale as when statelessness was suddenly created by the redrawing of borders and disintegration of states in the Europe of the 1990s. Nor may it have the same shocking and condemnable undercurrent as when statelessness resulted from policies of mass denationalization in the Europe of the 1930s. Yet I cannot help but be both alarmed and shocked by the fact that it is possible to be born stateless in Europe today. Indeed, this is a significant concern both in countries which already have large stateless populations – such as Latvia and Estonia – as well as where statelessness is a relatively marginal issue. A recent ENS blog highlighted just one of the many thousands of tragic stories of people born without, and growing without, a nationality. And to offer my own country by way of example: of the approx. 2000 people who are listed in the Dutch civil registry as ‘stateless’, it is astounding to discover that 1400 (or 70%) of these individuals were born in the Netherlands.

In order to better understand how, why and where things are going wrong, the European Network on Statelessness took the initiative to compile a report on Preventing Childhood Statelessness in Europe. It draws on existing comparative nationality law research conducted by the European Union Democracy Observatory on Citizenship, existing literature on problems of implementation of nationality laws and information provided by ENS members. This report looks at how Europe is performing with respect to international and regional standards in the fields of human rights, child rights and statelessness all protect the child’s right to acquire a nationality. In light of the overall goal of preventing childhood statelessness it highlights the main issues, gaps and good practices. It is launched this week, on the eve of an important series of events that will take place in Strasbourg from 7-9 April and which will focus on the challenge of addressing statelessness in Europe. The hope is that this will inspire further recognition and understanding of, and ultimately more effective law and policy to combat, the problem of childhood statelessness in Europe.

The report concludes with a series of important recommendations:

1. Ensure that all otherwise stateless children born on the territory of a European state acquire a nationality promptly.

2. Address the inadequacy of safeguards to prevent statelessness for children born on the territory as a matter of priority in those countries with large, existing stateless populations.

3. Ensure that restrictions on the conferral of nationality jus sanguinis to children born abroad do not lead to statelessness.

4. Abolish any difference in treatment in nationality laws with regards to children born out of wedlock.

5. Simplify procedures for birth registration and confirmation of nationality in countries with a problem of intergenerational lack of documentation.

6. Review nationality laws to identify and revise any provisions that could lead to loss of nationality of children, leaving them stateless.

Click here to access the ENS report ‘Preventing Childhood Statelessness in Europe: Issues, Gaps and Good Practices’.

Dr Laura van Waas, Senior Researcher and Manager of the Statelessness Programme, Tilburg University. 

Please note that this blog post originally appeared on the website of the European Network on Statelessness, accessible via 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.

GUEST POST: The Compatibility of Nationality Laws in Vietnam and Relevant International Standards

Strengths in Vietnam’s Nationality Laws

Due to a lack of ratification of international treaties relating to nationality laws, Vietnam has few obligations under international law. There are three situations in which Vietnam meets, or exceeds, such obligations.

1. Children born in Vietnam, if otherwise stateless

The Law on Vietnamese Nationality (LVN) regarding children born in Vietnam are certainly flawed. Nevertheless, they ultimately safeguard against statelessness. That is, the LVN does allow for a situation to arise where a child is rendered stateless: where a child is born in Vietnam and has one or two parents who are not stateless, but the child is for some reason unable to obtain their parent’s nationality, then the child will be stateless. However, LVN expresses as a general principle the right to a nationality for a child born in Vietnam if otherwise stateless (Article 8), and thus appears to provide protection against statelessness that is consistent with Vietnam’s obligations under CRC. It should be noted that the extra complexity in having to read these two sections together weakens the ultimate effectiveness of the safeguard and incorporating the words ‘unless otherwise stateless’ into the active provisions of LVN is recommended to provide stronger protection against statelessness.

2.      Renunciation of nationality

Under LVN, Vietnamese nationality can be renounced upon proof that the citizen is applying for foreign nationality. There is no requirement that the application for a foreign nationality is successful. Consequently, if a citizen renounces Vietnamese citizenship but fails to obtain foreign nationality, then they will become stateless.  Nevertheless, in this situation, Vietnamese citizenship will then be restored. Therefore, the LVN ultimately provides a sufficient safeguarded against continuing statelessness, despite the unusual situation where a person momentarily slips into a state of statelessness. However, it is likely this is the only possible solution; if the LVN provided that effective renunciation would depend on the application for foreign citizenship being successful, then the application may never be allowed, as the second nationality might only be awarded once the original nationality is fully renounced. Therefore, Vietnam cannot be too heavily criticised for its protection against statelessness where citizens seek to renounce nationality. Regardless, Vietnam has not breached international obligations, as they are not a party to the 1961 Convention on the Reduction of Statelessness (CRS).

3.      Racial Discrimination

LVN does not contain any racial discrimination and Vietnam is in compliance with international norms and obligations under CERD, CRS, CRC and UDHR.

Weaknesses in Vietnam’s Nationality Laws

1.      Acquisition of Nationality by a Child Born Abroad, to a Parent who is a Vietnamese National, if otherwise Stateless

Under Article 16, a child born outside Vietnamese territory will receive Vietnamese nationality if one parent is a Vietnamese citizens and the other is stateless at the time of his/her birth. Alternatively, if the child’s mother is a Vietnamese national and the father is unknown, then a child born abroad will receive Vietnamese nationality. However, the LVN fails to account for a situation where one parent is Vietnamese, and the other parent has a nationality, but the child is for some reason unable to obtain the second nationality. In this situation, the child could not get Vietnamese nationality and would be rendered stateless. Therefore, the LVN does not appear to be in line with Vietnam’s obligations under the CRC, or the CRS.

2.      Acquisition of Nationality by Foundlings

The LVN regarding foundlings is in breach of Vietnam’s obligations under CRC. Whilst newborns and children found in Vietnamese territory whose parents are unknown are given Vietnamese nationality, a child could lose their Vietnamese nationality because their parent is discovered, even though they might not be eligible for their parent’s nationality. Thus, the child would be left stateless.

3.      Loss and Deprivation of Nationality

The LVN for loss and deprivation of nationality meets obligations under the Universal Declaration of Human Rights (UDHR); loss/deprivation of nationality should not be arbitrary under the law as the grounds for loss and deprivation are clearly and systematically set out (Article 26 and 31 of LVN). However, the laws are not inline with international norms under the CRS. LVN states grounds for loss and deprivation (Article 23(1)(f), LVN), but fails to make loss/deprivation dependent on possession/acquisition of another nationality, thus LVN does not safeguard against statelessness. LVN only protects against statelessness arising from loss of nationality due to renunciation, as outlined above, and therefore allows for a number of ways for alternative methods of loss/deprivation to result in statelessness.

4.      Gender Discrimination

LVN is largely inline with Vietnam’s international obligations under CEDAW: men and women have equal rights to nationality, the nationality of the woman shall not be altered according to marriage, and both men and women equal rights with regards to the nationality of their children. However, gender discrimination is present. Article 16(1) does not allow for a child to receive Vietnamese nationality in situation where the mother is unknown and the father is a Vietnamese national. Thus, the father does not have equal rights with respect to the nationality of their children, and it could be argued Vietnam is not complying with its international obligation.

5.      Facilitated Naturalisation of Stateless Persons

Prima facie, LVN is consistent with Vietnam’s obligations under UDHR to facilitate naturalisation of stateless persons: stateless persons can naturalise, and stateless persons can naturalise without personal identification papers when they have resided in the Vietnamese territory for 20 years or more. However, on closer inspection, this “facilitation” is flawed for two reasons. Firstly, it could be argued that 20 years is too long a time to have to reside in Vietnam to be eligible for facilitated naturalization,although it is unclear whether a specific international norm governs this time period. Secondly, the prescribed 20-year residency time period must have been met at the time the law entered into force. Therefore, naturalization under the LVN will only ever be beneficial for a particular group and not for cases of statelessness arising after the law’s entry into force.

Conclusion

There are a number of gaps in the Law on Vietnamese Nationality that fail to provide sufficient protection against statelessness. Particularly concerning are the provisions in clear breach of Vietnam’s obligations under CRC. Laws relating to loss and deprivation are also troubling; as Vietnam is not bound by CRS, it is recommended that they ratify the convention and implement greater protection against statelessness. Furthermore, renewed consideration should be given to the period of 20 years for facilitated naturalization of stateless persons. 

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

GUEST POST: Statelessness Prevention in Indonesia - Strengthening the Nationality Legislation

Statelessness remains a global problem which is in need of a global solution. One way in which countries can contribute to this challenge is by developing their nationality legislation in such a way that it contains safeguards against statelessness. In this respect, Indonesia is an interesting example, as in 2006 new legislation on nationality was passed, which includes certain of such safeguards. As explained in the law itself, the previous legislation needed replacement, since it “was philosophically, juridically, and sociologically no longer compatible to the development of the people and the civic administration of the Republic of Indonesia”. The question which immediately comes to mind is whether Indonesia’s nationality legislation is completely attuned to the current demands in regards to statelessness prevention or that it is in need of further amendment. Therefore, it is insightful to consider the main positive and negative aspects of Indonesian nationality legislation in regards to the prevention of statelessness.

The main positive aspects of Indonesian nationality legislation can primarily be found in the inclusion of three principles, namely, ius sanguinis, ius soli, and non-discrimination. When considering the first two principles, it must be understood that persons born from Indonesian parents and those born on Indonesian territory are considered to be Indonesian citizens. However, it must be understood that the principle of ius soli does not apply in all cases; it applies to foundlings, children born from parents with undetermined citizenship, children born from parents with undetermined whereabouts and children from stateless parents. Nevertheless, by recognising both principles instead of one, Indonesian legislation prevents the previously mentioned groups from ending up without having a nationality and thus provides a safeguard against statelessness in these cases – although some gaps remain. Furthermore, the legislation acts against discrimination. Remarkable is however, that the legislation does not include specific provisions which state that discrimination must be excluded from the processes of acquiring, changing, renouncing, or passing on nationality. Rather, the general explanatory part of the legislation acknowledges the principle of non-discrimination and one can find provisions which result in persons not being discriminated against on for instance the basis of gender. Such provisions include for example the right of women to pass their nationality on to their children. As a result, statelessness caused by gender discrimination is prevented. Important to consider is that Indonesia hereby acts in accordance with its international obligations under the 1966 International Covenant on Civil and Political Rights (“ICCPR”) and the 1979 Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). But perhaps even more significant is that Indonesia hereby acts in accordance with international norms which are not ratified, such as the 1961 Convention on the Reduction of Statelessness (“CRS”) and Article 7 of the 1989 Convention on the Rights of the Child (“CRC”). In this respect, Indonesia may be understood to go beyond its international obligations and its legislation may appear to be in line with the international standards regarding statelessness prevention.

However, Indonesia’s nationality legislation has negative aspects as well. Especially the fact that Indonesia has not yet ratified the CRS must be understood as a negative aspect; it suggests that the country does not intend to act in accordance with all the Convention’s provisions, and this raises serious questions about Indonesia’s willingness to prevent statelessness. When taking a closer look at the legislation, one indeed finds aspects which are not in line with this Convention and Indonesia’s other international obligations, such as the 2006 Convention on the Rights of Persons with Disabilities, the ICCPR, and the CRC. Especially, but not exclusively, in respect to the naturalization procedure amendments are wished for; the current legal requirements for naturalization might make it problematic for some persons who are already stateless to acquire a nationality, thereby prolonging cases of statelessness. The requirements for naturalization for instance result in discrimination on the basis of religion due to the fact that one must recognise Pancasila, the belief in One God, and in discrimination of persons with disabilities, as applicants must be “sound in health and mind”. Moreover, the procedure requires persons to relinquish any other nationality, as Indonesia does not recognize double nationality. This requirement must be understood to have the possibility to exclude stateless persons and refugees from gaining Indonesian nationality, as they are often unable to provide proof of renunciation of nationality or to give up their nationality.

           

Thus, while Indonesia’s current nationality legislation can definitely be understood to be a step in the right direction, since it contains certain safeguards against statelessness, it is evident that the legislation is in need of amendment in order to better align the nationality laws with Indonesia’s international obligations and the current expectations regarding the prevention of statelessness. And perhaps the first next step should be one of the biggest ones a nation can take: acceding to the 1961 CRS. 

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

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]