Protecting the Rights of the Rightless: The UN Human Rights Committee and the Right to Acquire a Nationality under International Law

On December 28, the UN Human Rights Committee published its views in a ground-breaking case (Communication n. 2918/2016, CCPR/C/130/D/2918/2016), finding that the Netherlands had violated a child’s right to a nationality (Article 24.3 of the ICCPR) by registering “nationality unknown” in his civil records, thus hampering his access to international protection as a stateless child and leaving him with no prospect of acquiring a Dutch nationality.

Background

The case concerned a petition by a child, Denny Zhao, born in Utrecht in 2010 to a 21 year-old Chinese mother. Mr. Zhao’s mother, who herself was not registered in the civil records of China and therefore unable to obtain proof of Chinese citizenship, was trafficked to the Netherlands in 2004 at the age of 15 and forced into prostitution. She eventually escaped her captors and reported the situation to the police. After an unsuccessful, year-long investigation, her temporary residence permit was revoked and her status changed to “illegal alien” (sic).

Despite several attempts (both in the Netherlands and in China), Mr. Zhao’s mother could not produce any conclusive proof of his (lack of) nationality, as required by Dutch law, to change Mr. Zhao’s entry in the civil registry to “stateless” and trigger the special protection afforded to stateless children under international and domestic law (including the right to acquire a nationality). In a decision on an administrative appeal, the district court of Midden-Nederland highlighted that the burden of proof in these cases rests on the claimant while Dutch authorities are not required to conduct inquiries and determine stateless status. The ruling was confirmed by the Dutch Council of State, which did acknowledge that individuals entitled to international protection were falling through a gap in legislation, but declining to fill any such loopholes. After having all applications and appeals denied, Mr. Zhao and his mother were living in a centre for unsuccessful asylum seekers with young children, with nearly no contact with Dutch society and under a permanent threat of deportation.

 The Right to Acquire a Nationality under Article 24(3) of the ICCPR

In its decision, the UN Human Rights Committee started by reaffirming the child’s right to special measures of protection under Article 24 of the ICCPR, including the best interests of the child principle. Regarding the child’s right to acquire a nationality, the Committee resorted to its Comment General No. 17 (1989) on the Rights of the Child, according to which:

States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born. In this connection, no discrimination with regard to the acquisition of nationality should be admissible under internal law as between legitimate children and children born out of wedlock or of stateless parents or based on the nationality status of one or both of the parents.

While the Committee recognised that the purpose of Article 24.3 is to prevent a child from being afforded less protection because of their—lack of—nationality, it did not go so far as to suggest that states have an obligation to confer nationality to every child born in their territory. In fact, it is now a long established rule of international law that states are—at least a priori—free to determine who is and who is not a national (cf. Tunis and Morocco Nationality Decrees, p. 24). Whilst this prerogative is not absolute, international law sets the limits within which states may exercise their discretion.

One such limitation, as the General Comment indicates, is the obligation of non-discrimination enshrined in Articles 2 and 24 of the ICCPR, which operates, for instance, in relation to the modes of acquisition of nationality. That is to say, if a given state adopts the jus soli principle as the main criteria to confer its nationality, it cannot discriminate between children born to single mothers and those born to married couples, nor between those born to stateless parents and those fathered by individuals of a given nationality. In this example, the civil and nationality statuses of the child’s parents become immaterial.

Determining Who is a Stateless Person

On the issue of determining stateless status, the Committee relied on the 1961 Statelessness Convention (to which the Netherlands is a party) and the UNHCR Guidelines No. 4 Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness. Oddly, the decision does not mention the 1954 Convention on the Status of Stateless Persons (to which the Netherlands is also a party), which contains a neat definition of stateless person and provides a veritable catalogue of rights and safeguards to the holders of stateless status.

Following the UNHCR Guidelines, the Committee noted that a person will not be considered as a national of a particular state if “the authorities of that state refuse to recognise that person as a national.” Such refusal may transpire when the said authorities expressly recognise a person as a non-national, but it could also happen if they fail to “respond to inquiries to confirm an individual as a national.” In other words, there is no need for a conclusive, strict standard of proof to establish that a person lacks a given nationality. A fortiori, the fact that Chinese authorities have repeatedly declined to issue any proof of Mr. Zhao’s nationality would suffice to establish that he was not a Chinese national. This is a relatively lower evidentiary threshold if compared to that established by the 1954 Convention on Stateless Status in its Article 1(1), according to which a person is stateless when “not considered as a national by any State under the operation of its law”.

Moreover, in view of the practical difficulties surrounding the determination of whether or not an individual has in fact acquired a nationality, the UNHCR Guidelines advise that the “burden of proof must be shared between the claimant and the authorities of the contracting state.” This seems to be the correct approach, for often stateless individuals are simply unable to substantiate their claims with much—if any—documentary evidence. This understanding is also endorsed by the UNHCR Handbook on the Protection of Stateless Persons (regrettably not used by the Committee), according to which “both the applicant and examiner must cooperate to obtain evidence and to establish the facts [in the case of statelessness determination].”

Nationality unknown v. Stateless status

Regarding the use of “nationality unknown” in Mr. Zhao’s civil records, the Committee noted that under the 1961 Statelessness Convention, states are required to “determine whether a child would otherwise be stateless as soon as possible so as not to prolong a child’s status of undetermined nationality.” Relying once again on the UNHCR Guidelines, the Committee pointed out that such a period “should not exceed five years” during which these children are to “enjoy human rights (such as health and education) on equal terms as children who are citizens.”

Mr. Zhao’s situation was neither an isolated case, nor exceptional. Rather, it is the result of a flawed system that traps thousands of individuals in a legal limbo. According to a 2011 study developed by the UNHCR, there were 90,000 people described as having “unknown nationality” in their civil records, including 13,000 children—many of whom were born in the Netherlands. For instance, as of September 2016 the “total number of ‘unknown’ nationality entries was 74,055, including 13,169 children under 10 years old.” Despite a draft of legislation presented by the Netherlands on a statelessness determination procedure, the Committee stressed that it did not meet international standards, as it fell short in ensuring that a “person recognised as stateless is granted a residence permit so as to fully enjoy her rights [under the ICCPR].”

Conclusion

While the reasons why such a trailblazing decision—the first of its kind by the Committee—has passed virtually unnoticed may be credited to the anxieties surrounding the final moments of a turbulent year, its significance for the protection of stateless persons can hardly be denied.

Regrettably, however, the Committee did not mention the 1954 Convention on the Status of Stateless Persons. Likewise, if compared to the rich case-law of the African and Inter-American Human Rights Systems on the matter, the Committee’s decision fell short in linking the right to acquire a nationality with other rights and guarantees under the ICCPR. As pointed out by Hélène Tigroudja in her concurring opinion, Mr. Zhao’s “situation of statelessness” should have been “analyzed by the majority as a violation of the right to be recognized by the law as a legal person (article 16) and the right to be treated with humanity and dignity (article 7).”

Be that as it may, the Committee’s decision does acknowledge the fundamental nature of the right to nationality and the concrete protection that it ensures for individuals. In that, it is an important landmark in the global fight against statelessness.