By Tracey Gurd
Open Society Foundations
February 3, 2011
Around the world, there are an estimated 5 million children without access to citizenship. The impact is enormous. These "stateless" children are denied the basic services most of us take for granted-education and health care, for starters-and most grow up in extreme poverty. Without rights, they are left vulnerable to a wide range of dangers, including trafficking and exploitation. And yet the problem remains largely invisible.
Sebastian Kohn, the Justice Initiative's expert on global statelessness issues, is committed to changing that. This year, he will be traveling the diplomatic circuit and making the case for a robust new framework of legal protections for children.
In early February, he was preparing a formal presentation before the United Nation's Committee on the Rights of the Child-the UN body in charge of interpreting children's rights. We sat down with him shortly before he left for Geneva.
What made you care about this issue?
The first time I encountered statelessness was when I spoke to a very good friend of mine who told me about his experience moving from the Soviet Union to the United States when he was four years old. The Soviet Union, at that time, systematically deprived everyone of their citizenship-of their Soviet nationality-when they left to live abroad. So when he arrived in the US, it took almost a decade for him and his family to acquire American nationality. He was in his early teens when he became a US citizen. Luckily for him, he had refugee status at the same time, so he didn't have any problems attending school, he had access to health care, and even got travel documents from the US government.
But since I started working on statelessness globally, I've learned that this is certainly not the case in most other places. Many children are born stateless or they become stateless very early on, and as a result many grow up in poor and miserable conditions, with no, or very limited, access to education and health care, some of them are actually vulnerable to trafficking or other forms of exploitation because of their statelessness. Many children also get deported or detained for long periods of time simply because they are not nationals of the place where they find themselves.
So apart from your friend, Sebastian, have you met any particular children who really highlighted to you why kids need to have a nationality?
Well, over the last few years I met quite a few children who struggle with statelessness on a daily basis, though they are not always aware that they are stateless. I recently visited a couple of villages in southern Mauritania where previously expelled Mauritanians, who have now returned to the country, live. Most of the kids in these villages were not actually born in Mauritania. They were born in exile-most of them in Senegal or Mali-and they have returned quite recently with their parents. The Mauritanian government had promised to restore their nationality when they returned. Currently though, at least half of the people I met haven't yet received recognition from the government of their nationality-so for all practical purposes these people are still stateless. Some of them weren't able to leave the village they lived in because they didn't have ID cards. Without IDs, they couldn't get past the police checkpoints between the village and the nearest town, which is only really three kilometers away. They are basically stuck there-so the consequences for these children is that they have essentially no freedom of movement; many of them weren't attending school-there are few if any schools in many of these villages-and their access to health care is entirely inadequate.
For these Mauritanian children, then, the consequences of being stateless are quite dire. Do you think this is typical of the experience of a lot of stateless children around the world?
I think what sets the Mauritanian children apart from many other children who are stateless is the cause of the phenomenon. They were born in exile and their parents had been expelled from the country. That's not the case with most other stateless children.
Having said that, I think the consequences of statelessness are very similar regardless of what populations you look at. I've seen cases of stateless kids-whether it be Nubian children in Kenya, or children of Haitian descent in the Dominican Republic, or Rohingya kids in Thailand-and they all grow up in poverty, extreme poverty, with little or no education opportunities-especially after primary school level. In places like Kenya, we've found that while children often do get to go to primary school, the problems really start at the secondary school level. That can have really severe consequences for their future employment opportunities. Many of them don't get health care-sometimes because they can't afford to pay the fees that are applied to non-nationals. And as I mentioned before, there's quite a bit of evidence, in South East Asia in particular, of a connection between statelessness and trafficking or other forms of exploitation. This has affected stateless children from the Hill Tribes in Thailand for example.
In addition, quite often the consequences of statelessness begin before the child is born. A lot of stateless women don't have access to pre-natal care, they frequently give birth in dangerous places, such as in the slums. Also, stateless babies very often don't receive all the necessary immunizations. So it is a really tough start for many of them.
I always assumed that children automatically got the nationality of the place where they were born. Isn't that correct?
You know, I speak to a lot of people who think that's the case, but in most countries in the world, you do not get citizenship just because you are born there. In fact, citizenship is frequently primarily based on the citizenship of your parents. So this means that if your parents are stateless, you are not going to inherit a nationality from them. Many children with stateless parents, as a result, become stateless themselves. A further complication is that in many places, women aren't allowed to transfer nationality to their children. Now this may not be a problem in terms of citizenship for the child if the father has a nationality. But in many places we find that women are married to foreigners or stateless men, and even though they have nationality themselves, they can't actually transfer it to their children, who then may become stateless.
So once a child is born stateless or becomes stateless, how difficult is it for them to acquire a nationality?
SK: It really depends on the country. There are certainly some best practice countries around the world where you have expedited processes for the children to acquire nationality even if they weren't born in the country. Sometimes, like in Argentina, it's a matter of having lived in the country for a few years. In some places though, such as the Central African Republic, the residence requirement can be as long as 35 years. In other places, you have to belong to a particular ethnic or religious group to naturalize. This is the case in places like Liberia and Saudi Arabia. So there are all sorts of bars that children can face. The really best practice, though, is when a child who would otherwise be stateless automatically acquires the nationality of the country of birth, even though in general, nationality in that country is given on the basis of bloodline.
So best practice, then, is that children who would otherwise be stateless acquire the nationality of the country in which they were born. Doesn't the law say that this should be the case anyway?
In theory that should be the standard in much of the Americas, Africa and in Europe where regional treaties set out this rule. Unfortunately, that is not the standard that a lot of states have adopted in their national laws, and of course there are a large number of states that fall outside these regional conventions. There are protections in other international instruments, like the Covenant on Civil and Political Rights, the Convention on the Rights of the Child that guarantee that children have 'a right to acquire a nationality' but don't actually go into the details of what this means in practice.
Do the details matter?
Well, they do because in the absence of details, states don't feel that they need to adopt these standards. This is why you do see better practices in states where regional mechanisms provide more specific standards, like the European Convention on Nationality, the African Charter on the Rights and Welfare of the Child, and the Inter-American Convention on Human Rights. Unfortunately because children's right to nationality is still quite vague under the two other international instruments, a lot of states have not translated it, or transposed it into their national laws.
So what are you doing to try to make statelessness less of a problem for children?
In general, the Justice Initiative engages in a combination of litigation, advocacy, research and capacity building to try to address statelessness among both children and adults. With respect to children, we believe that 2011 really represents an opportunity to address this problem-in part because it is the 50th anniversary of the 1961 Statelessness Reduction Convention, which provides a right for children who would otherwise be stateless to acquire the nationality of the state of birth, just like the regional instruments I've been talking about. Now we want to push the issue further because this Convention is poorly ratified. First, we want the Committee on the Rights of the Child to more explicitly interpret their Convention to say that the "right for children to acquire a nationality" actually means that children who would otherwise be stateless should acquire the nationality of the country of their birth. We also want them to set some kind of minimum standards for naturalization of stateless children. In addition, we want to establish the principle that no children-in fact no people at all-should be arbitrarily deprived of their nationality, and that people shouldn't be denied access to nationality on the ground of their race, gender, religion or any other status.
So you would like lawmakers and diplomats to take this issue very seriously, you consider that this is not an issue they have explored deeply enough, and that changes they could make would have an impact. Can you tell me, what type of impact could these changes have?
That's exactly right. We want states and we want international bodies to really understand and begin to tackle this problem. We acknowledge that by and large, the state has a sovereign right to decide who its nationals are, but this sovereign right is limited by the rights of individuals under human rights law. The rights of individuals include non-discrimination, the right to acquire a nationality for children, freedom of movement and a host of other things, and we really think there is a lot more that governments and their diplomats, international organizations and NGOs can do to advance these rights.
In terms of impact, clearer norms would help law makers when they are drafting new laws. For the Convention on the Rights of the Child, it is particularly important since it's been ratified by all but two countries in the world, which provides an opportunity to litigate the Convention in national courts, and to raise the rights in the Convention with policy makers. It provides a basis for lobbying and advocacy to change national laws, and we believe that ultimately when the Committee on the Rights of the Child gets an individual communications mechanism, this will provide an additional avenue where this right can be enforced.
And if these changes are made, what does that mean for the children who are stateless, or could be stateless in the future?
We really hope that some of the consequences of statelessness could be addressed. Of course, we appreciate that some issues will take longer to deal with, such as the poverty problem. I mean, some of the communities I've met live in poverty because this is a multigenerational issue and it might quite possibly take a generation or two to allow people to get out of this situation. But there are other things that could change immediately, such as access to health care when you need it, or access to education. These are pretty much straight forward government decisions. It's not a process that needs to take decades and decades.
So children could benefit immediately if changes were made?
We believe so. Children could benefit immediately to the extent that governments take these changes seriously, and to the extent that they lead to honest and meaningful changes in both policy and law.
