This section of the Toolkit contains a 10-point Checklist which serves as a tool to guide civil society stakeholders in the assessment of issues, legal gaps, and conditions in which statelessness may arise and manifest in countries under review.
Questions 4-6 of the Checklist relate to the legal framework in place in the country: are there discriminatory provisions which affect access to nationality, are there adequate safeguards to protect children born on the territory from statelessness, are there other legal gaps affecting children’s access to nationality and is the State party to relevant international treaties?
© Greg Constantine
4. Does the country’s legal framework contain discriminatory provisions which arbitrarily deprive nationality or deny access to nationality?
The principle of non-discrimination dictates that children have the right to acquire a nationality, irrespective of the child’s or his or her parents’ or legal guardians’ race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Discriminatory nationality policy can also create, perpetuate or prolong problems of statelessness. For instance, where a woman does not enjoy the same right to transmit nationality to her child as a man, children are put at heightened risk of statelessness. Arbitrary deprivation or denial of nationality on the basis of race or religion has also left whole communities stateless in different countries around the world. The discriminatory implementation of the law (for example, not registering the births of minority groups) can also cause statelessness.
It is also important to assess how this situation relates to the other 9 points in the Checklist (e.g., if the state has a discriminatory nationality framework, does it also have a large stateless population; does it have adequate safeguards to protect stateless children born in the state’s territory from statelessness, etc.).
Once upon a time, it was very common for countries to have a system under which a woman acquired her husband’s nationality upon marriage and children acquired this same nationality at birth, through their father. These were the rules contained in the nationality laws of colonial powers such as Britain and France, which were exported to their colonies all over the world – many of which maintained this approach following independence.
Today, the majority of states recognise the importance of recognising women’s equal rights with men to transmit their nationality to their children – not only as a women’s issue, but in order to protect children and families from the detrimental consequences of the old system. The adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), in 1981, solidified international commitment to protecting a mother’s nationality rights and many more countries have since enacted legal reform.
Just 27 states remain where a woman cannot pass her nationality to her children on equal terms with a man. Where the law restricts the right of children to acquire the nationality of their mother, this can cause statelessness – if the father is unknown, is unable or unwilling to pass on his nationality, or is himself stateless. There are also countries in which men are restricted in their ability to transmit nationality to their children, if these children are born outside marriage. This too, can expose children to statelessness and is a violation of the principle of non-discrimination in the enjoyment of the child’s right to a nationality.
An interactive version of this map is available on the website of the Institute on Statelessness and Inclusion: www.institutesi.org/gender.
Sample recommendations issued by the Committee
The Committee strongly urges the State Party to review the provisions of the Act on Determination of Nationality of Children Born into Marriages of Iranian Women with Men of Foreign Nationality amending the Civil Code and ensure that all children who are born to Iranian mothers, including children born out of wedlock, are entitled to Iranian citizenship on the same conditions as children born to Iranian fathers. The Committee also recommends that the State Party provide information on the number of children born to Iranian mothers who have been naturalised in its next periodic report.
The Committee remains concerned that according to the Brunei Nationality Act (Cap 15), children of Bruneian women married to foreign nationals may be accorded Brunei nationality only upon application, while the children of Bruneian fathers are granted Brunei citizenship automatically. While welcoming the steps taken by the State Party to naturalize a number of stateless children between 2009 and 2012, the Committee is concerned at the lack of awareness among the parents and guardians of stateless children on the needs to register their children as citizens, according to the Brunei Nationality Act.
The Committee urges the State Party to: Review the Brunei Nationality Act and other relevant legislation relating to nationality to ensure that Bruneian women can transfer nationality automatically to their children.
The Committee recommends that the State Party amend its domestic laws to grant Omani women equal rights with Omani men with regard to transmission of their nationality to their children and to provide adequate safeguards to ensure the conferral of citizenship to children who would otherwise be stateless. (…) It further recommends that the State Party become Party to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
Other forms of discrimination
Many countries discriminate in access to nationality on grounds of race, religion, disability or other status. For example in Liberia, nationality is only open to those who are ‘of negro descent’ and therefore discriminates against an individual based on their race. In Algeria, the naturalisation requirement of being ‘sound in body and mind’ has the potential to exclude persons with certain disabilities from acquiring nationality. A few countries have arbitrarily deprived entire communities of their nationality on grounds of ethnicity, religion etc. In Myanmar in the 1980s, entire communities – particularly the Rohingya - were stripped of their nationality through a change in law that excluded them from being citizens on grounds of ethnicity. Mauritania provides a further example, where many Black Mauritians were stripped of their nationality and deported in the 1980s by an Arab government. Both the Rohingya and the Black Mauritanians were arbitrarily deprived of their nationality and left stateless. More recently, the Dominican Republic has arbitrarily deprived persons of Haitian descent of their Dominican nationality.
Sample recommendations issued by the Committee
The Committee urges that the State Party to:
a) Respect the right of children belonging to all religious denominations, including Jehovah’s Witnesses to exercise their right to freedom of religion and ensure that they are not harassed or prosecuted;
b) Immediately reinstate full citizenship of children and their families who follow unrecognized religious denominations and ensure their equal access to public services, including issuance of official identity cards.
The Committee is concerned at a discriminatory provision against children with disabilities contained in Article 4 (b) of the Nationality Act No. 6 (1990), according to which one of the prerequisites for children born in the State Party to foreign parents to acquire Yemeni nationality, once they have attained majority, is not to have a disability.
The Committee urges the State Party to repeal any discriminatory provisions against children with disabilities in the National Act No. 6 (1990), in particular Article 4 (b), and ensure that all children without discrimination of any kind have the right to acquire nationality.
5. Does the country’s legal framework have adequate safeguards to protect all children born in the territory (including foundlings) from statelessness?
Some countries have no safeguards to protect against childhood statelessness. An example of this would be Cyprus, where the only way to obtain nationality is through blood links or naturalization. Being born on Cypriot territory and obtaining no other nationality would mean being born a stateless child. In addition to that, many countries have no safeguards for foundlings born in their territory. If a baby is found in the Côte d’Ivoire for example, where both parents are unknown, they would not be able to become Ivorian nationals and therefore would be left stateless.
Some countries haven only partial safeguards, conditional on the fulfilling of additional criteria, including residence requirements imposed on the child and/or parents. For example, Viet Nam grants a child who was otherwise born stateless in its territory a nationality, but only where both parents are stateless and permanently resident in the country. With regards to foundlings, some countries have safeguards that are limiting. For example, a ‘foundling’ may only be defined as a ‘new-born’ or, as in the case of Austria, babies under 6 months old. Therefore when a baby is found who is older than this but where the parentage is still unestablished, the child may be left stateless.
|Some countries may have full of partial safeguards in the law which are not implemented or implemented in a discriminatory and/or ineffective manner. Article 1 of the Lebanese nationality law for example clearly states that a person who is born on Lebanese territory and did not acquire a foreign nationality at birth is Lebanese. However, this is not known to be implemented and many births on the Lebanese territory are resulting in stateless children. Similarly, a study by the European Network on Statelessness focusing on the prevention of childhood statelessness in Europe found that implementation of safeguards to realise children’s right to a nationality is severely hampered by the failure to identify children who are stateless and need to acquire a nationality under these special provisions.|
Some questions to consider in assessing the nationality framework in your country of work:
Is acquisition of nationality by otherwise stateless children born on the territory automatic (at birth) or subject to an application procedure? If an application procedure:
- Is there a time limit?
- Are there additional requirements (legal residence, domicile, language, etc.)?
- Is there any discretion (i.e. can the authorities decide not to grant nationality, even if the conditions have been met)?
- Are there any other barriers such as high fees?
Do the normative provisions related to the right to nationality of children born in the territory, and their effective implementation, create exceptions based on
- The parents’ legal status, including residency?
- The parents’ gender, sexual orientation, race, religion or ethnicity, social origin, marital or other status?
- The parents’ past opinions or activities (e.g. former military personnel)?
- The child belonging to a(n) (ethnic) minority group?
- The child being born to (former) refugees?
Are safeguards designed to grant nationality to children who are otherwise stateless implemented in practice?
It is also important to assess how this situation relates to the other 9 points in the Checklist. (e.g., in addition to a lack of or gaps in the safeguards needed to prevent childhood statelessness, is there already a large stateless population in the country, is any data available on acquisition of nationality by stateless children, is the state a party to the 1961 Convention on the Reduction of Statelessness, etc.)
Sample of recommendations issued by the Committee
The Committee recommends that the State Party intensify its efforts to ensure all children’s access to a nationality, including by reviewing the Citizenship Law to automatically grant citizenship to children born in Latvia who would otherwise be stateless, including children of parents with a ”non- citizen” status or parents who are unable to transmit their citizenship to the child. The Committee further recommends that the State Party consider ratifying the 1997 European Convention on Nationality, signed on 30 May 2001, and the 2009 Council of Europe Convention on the avoidance of statelessness in relation to State succession.
In the light of its recommendation of 1998 (CRC/C/15/Add.96, para. 20) and those of other treaty bodies, the Committee urges the State Party to abide by its obligation to ensure that all children within the State Party’s jurisdiction have the right to be registered at birth and acquire a nationality, irrespective of the child’s or his or her parents’ or legal guardians’ sex, race, religion or ethnicity, social origin or status. The Committee urges the State Party to take immediate action to:
(a) Ensure gender equality in the 1959 Nationality Act in order for all children born to a Kuwaiti mother and non-Kuwaiti father to automatically acquire their mother’s nationality;
(b) Ensure that identity documents no longer permit the identification of children as being of unknown parentage; and
(c) Ratify the Convention relating to the Status of Stateless Persons of 1954 and the Convention on the Reduction of Statelessness of 1961.
The Committee urges the State Party to further review and enact legislation in order to ensure that all children who are at risk of becoming stateless, including children belonging to the disadvantaged groups mentioned in paragraph 41 (i.e. especially children of indigenous and minority groups, and children of migrant workers, refugees and asylum-seekers) are provided with access to Thai nationality. The Committee recommends that the State Party consider ratifying the 1954 Convention relating to the Status of Stateless Persons and its 1967 Optional Protocol, and the 1961 Convention on the Reduction of Statelessness.
The Committee recommends that the State Party take all the necessary measures to avoid a child found abandoned in Fiji being stateless. Furthermore, the Committee recommends that the State Party consider ratifying the Convention on the Reduction of Statelessness of 1961.
6. Are there other legal gaps affecting children’s access to nationality?
Children born abroad
In some countries, children born abroad to nationals do not have access to nationality. One example of this relates to children with Canadian parents born outside Canada. Only in 2015 was a set of amendments to the Canadian Citizenship Act passed to allow children born abroad to Canadian parents to acquire citizenship.27 Children born outside Canada to parents with Canadian citizenship who themselves were already born abroad remain excluded from the possibility to acquire their parents’ citizenship.28 This type of restriction whereby nationality cannot be transmitted beyond the first or second generation born abroad exists in several country’s nationality laws. Elsewhere, for children born outside their parents’ country of nationality, additional administrative steps must be taken for nationality to be acquired – and carrying out such steps in practice may be problematic. Finally, some countries place tighter restrictions on the transmission of nationality to any child born outside the country, or deny women the right to pass nationality to their children if born outside the country.
Sample of recommendations issued by the Committee
The Committee further recommends that the State Party: Immediately provide children of Haitian descent who have been expelled from the Dominican Republic and their families with identity documentation.29
In certain countries the law may fail to protect children from statelessness in the context of adoption. An example of this is Malaysia, where adopted children do not acquire Malaysian nationality following their adoption by Malaysian nationals, causing the prolongation of statelessness in some reported cases. International adoption can create particular challenges. When a child originally held the nationality of one country and is adopted by adoptive parents who hold another nationality, the nationality of the child will usually follow that of the adoptive parents, but there may be problems. If the country of the child’s original nationality provides for automatic loss of nationality upon foreign adoption, while the country of nationality of the adoptive parents does not automatically or immediately allow for acquisition of nationality, statelessness can result. Problems can also arise if the adoption is later cancelled or reversed. Romania, for instance, allows for the loss of nationality by a child if his or her adoption is annulled, regardless of whether statelessness results from that loss.
Sample of recommendations issued by the Committee
The Committee notes that the State Party’s law prohibits surrogate motherhood and is aimed at discouraging surrogate motherhood arrangements made abroad. The Committee is nevertheless concerned about the uncertainty of the legal status of the child during the one-year period of assessment for possible adoption. The Committee recommends that the State Party: (a) Accelerate the assessment procedure and ensure that the child is not stateless or discriminated against during the waiting period between his or her arrival in the State Party and formal adoption.
International surrogacy arrangements
The law may also lack protection against statelessness in the context of surrogacy, i.e. where intending parents arrange for a child to be carried to term by a surrogate mother. There is a growing market for international commercial surrogacy, whereby commissioning parents make arrangements to use the services of a surrogate mother who resides in and is a national of another country. In countries where surrogacy is illegal or not recognised by the law, the parentage of either the commissioning parents and/or the surrogate mother may not be legally recognised and children born from such arrangements may be denied citizenship.
The case of Mennesson v. France which was brought before the European Court of Human Rights provides an example of how these problems can play out. It centred around the French authorities’ refusal to grant French nationality to the children of its nationals who were born from an international surrogacy arrangement because, under French law, surrogacy is void and goes against public policy.31 In that case, the Court recognised the French authorities’ interest in seeking to deter people from using prohibited commercial surrogacy arrangements. However, “the effects of non-recognition in French law of the legal parent-child relationship between children thus conceived and the intended parents are not limited to the parents alone, who have chosen a particular method of assisted reproduction prohibited by the French authorities. They also affect the children themselves, whose right to respect for private life […] is substantially affected. Accordingly, a serious question arises as to the compatibility of that situation with the child’s best interests, respect for which must guide any decision in their regard”.32
The Committee on the Rights of the Child has yet to issue recommendations to States specifically addressing the nationality law implications of surrogacy arrangements (although see above for a related recommendation to Switzerland dealing with nationality in the context of adoption following a birth commissioned through surrogacy).
Loss and deprivation of nationality
In some countries, the law may allow for the deprivation or loss of nationality of children (including as a result of deprivation or loss of their parent’s nationality). In Benin for example the loss of Beninese nationality by the father can be extended to his children.33 If no other nationality is acquired this may lead to the statelessness of the children involved.
Sample of recommendations issued by the Committee
Ukraine: The Committee expresses concern that a child’s citizenship may be renounced by the State Party in the following circumstances, as referred to in paragraph 58 of the State Party report (CRC/C/UKR/3-4): (a) if the child, and at least one parent, leave for permanent residence abroad and at least one parent gives up Ukrainian citizenship; and (b) when a child has acquired Ukrainian citizenship at birth and, at the time of birth, at least one of his or her parents was a foreigner or stateless person, such citizenship may be renounced at the request of either parent, regardless of the child’s place of residence. The Committee recommends that the State Party: (a) Amend legislation so as to guarantee by law and in practice the right of the child to a nationality and not to be deprived of it on any ground and regardless of the status of his/her parents; (b) Ratify the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
7. Is the State party to the most relevant treaties and has it removed any reservations that it made to these treaties?
The CRC is not the only treaty to address the right to nationality and the prevention of statelessness. For example, Article 24(3) of the International Covenant on Civil and Political Rights provides that “Every child has the right to acquire a nationality” and Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women reads:
1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect to the nationality of their children.
For a full list of relevant provisions of UN human rights treaties and links to the text of treaties see Section 8 of the Toolkit.
It can be useful to refer to other relevant standards that the State has accepted and any relevant recommendations by other human rights bodies to support and reinforce the analysis and recommendations in submissions (Section 8 also includes some examples of recommendations on the right to nationality by other UN human rights treaty bodies). Where the State is not a party to relevant treaties the submission may wish to mention this, as the Committee can recommend that the State ratify other relevant treaties. Similarly, if the State has made reservations to other treaties relating to the right to nationality it is useful to mention these both as an indication of problems in the national laws and attitudes to the right to nationality and so that the Committee can consider making a recommendation on withdrawal of the reservations. To find out if a State is party to relevant human rights treaties and whether it has made reservations (available in the ‘Declarations’ tab when you select a State from the list) check the OHCHR Interactive Dashboard of Ratification.35
In addition to human rights treaties, relevant standards are contained in the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. A list of States Parties to the 1954 Convention38 and the 1961 Convention39 are available from the UN Treaty Collection website and UNHCR has a map of the States Parties to the two Statelessness Conventions.
If there is a stateless refugee population or a refugee population at risk of statelessness, it may also be relevant to refer to the 1951 Convention relating to the Status of Refugees.41 A list of States Parties to the Convention42and the 1967 Protocol43are available on the UN Treaty Collection website.
It is also important to assess how this situation relates to the other 9 points in the Checklist. (e.g., if the state has a reservation to CEDAW article 9, does it also have gender discrimination in its nationality law; or if it is not a party to the 1961 Convention on the Reduction of Statelessness, does it have adequate safeguards to protect stateless children born in the state’s territory from statelessness, etc.)