Saturday, July 07, 2012

International Relations: Statelessness at the UN - Reaffirming the Right to Nationality

Source: Open Society Foundations

Statelessness at the UN: Reaffirming the Right to Nationality

by Sebastian Kohn & Katrine Thomasen

Today the UN’s Human Rights Council—a body responsible for promoting and protecting human rights around the world—passed an important resolution on the right to nationality, focusing specifically on women and children. This is an important step to further strengthen international legal norms in this area. It is also a strong indication of increasing understanding and concern for those who have no nationality anywhere—the stateless—and those who experience severe discrimination when they attempt to obtain proof of their nationality.

The resolution is the culmination of nearly two years of advocacy by the Open Society Justice Initiative. The idea was proposed to the US Department of State in the autumn of 2010 as a measure to strengthen children’s right to nationality, an issue that overlaps in significant ways with the department’s concern with discrimination against women in nationality laws and practices. In early June 2012, a draft resolution was presented to other states in Geneva—where the Human Rights Council meets three times every year—after which negotiations about the content began. The Justice Initiative made an intervention during the session of the council to highlight the importance of this resolution.

Statelessness affects more than 12 million people around the world, among whom the most vulnerable are children. The Justice Initiative estimates that as many as five million may be minors. The consequences of lack of nationality are numerous and severe. Many stateless children grow up in extreme poverty and are denied basic rights and services such as access to education and health care. Stateless children’s lack of identity documentation limits their freedom of movement. They are subject to arbitrary deportations and prolonged detentions, are vulnerable to social exclusion, trafficking and exploitation—including child labor.

Perhaps the most detrimental consequence of statelessness for children is with respect to education. While some countries do offer educational opportunities to stateless children, many do not. In Malaysia, stateless children of Indian, Filipino, or Indonesian descent in Selangor and Sabah are frequently denied access to basic education in state schools: if a child’s birth certificate has “foreigner” written on it, or if the child doesn’t have a birth certificate at all, the child is simply unable to enrol. Similarly, in the Inter-American Court of Human Rights case of Yean and Bosico v. The Dominican Republic, the two applicants—both children—had been arbitrarily denied Dominican nationality. As a result they were barred from going to school since identity documents were a pre-requisite to enrol. Denying children a right to education can cripple entire communities for generations to come.

Few stateless children are able to obtain passports or other travel documents. This has serious implications for their right to freedom of movement, and bars them from travelling abroad to visit relatives or pursue educational opportunities. Similarly, the right to healthcare and social security is severely compromised for many stateless children. Statelessness jeopardizes their parents’ economic opportunities, and many grow up under conditions of extreme poverty, where access to medical treatment and immunisations are scarce.

Evidence from some parts of the world suggests that stateless children are at greater risk of human trafficking and other forms of exploitation. This connection is evident in the case of the Hill Tribes in Thailand, for example, who—because they are not ethnic Thais—have struggled with statelessness for generations.

The resolution by the Human Rights Council acknowledges these important challenges faced by stateless children and calls on governments around the world to reform legislation that discriminates against women. Indeed, one important cause of statelessness among children is the violation of women’s right to confer nationality to their off-springs. According to UNHCR, at least 26 countries still have gender discriminatory nationality laws. For example, Kuwait and Saudi Arabia—both members of the Human Rights Council—do not allow their female citizens to transmit nationality to their children. In a place like Kuwait, where an estimated 100,000 people are stateless, children of a Kuwaiti woman and a stateless man thus inherit the father’s predicament. On a positive note, many countries including most of North Africa, have recently reformed their nationality laws.

The resolution highlights many important international legal norms, including the right to free birth registration—a crucial measure to reduce the risk of statelessness. The resolution also calls upon states to protect the right to due process in all nationality-related matters, and to provide effective remedies where the right to nationality has been violated.

The resolution does, unfortunately, fall short of accepted treaty standards on one point. More than 100 countries have an explicit obligation to grant nationality to children born on their territories who would otherwise be stateless. This obligation is also implicit in the Convention on the Rights of the Child, which has been ratified by all but two countries. The council resolution, however, only encourages states to “facilitate, in accordance with their national law, the acquisition of nationality by children born on their territories or to their nationals abroad who would otherwise be stateless.” Moreover, the resolution fails to acknowledge the right to nationality for children not born in the country where they habitually reside. International law requires states to ensure that all stateless children have access to nationality through a process of facilitated naturalization, regardless of place of birth. Unfortunately this provision—which was proposed by Costa Rica—was opposed by several states including Algeria, China, Egypt and Iran and was struck from the draft resolution.

Nevertheless, the resolution reiterates many of the crucial norms in this area. It was unanimously adopted and does as such represent a broad consensus among governments about the state of international law in this area.