7
With these 14 simple words, Renate Winter, Member of
the United Nations Committee on the Rights of the Child
– addressing participants at the ENS regional conference
on Preventing Childhood Statelessness, held in Budapest in
June 2015 – summed up why the enjoyment of a nationality
is a fundamental right of every child. Children affected
by statelessness did not choose this status. Nor do they
somehow exist as free agents without any attachments to
a family, a community, a place or a home. They have the
same connections as anyone else. They have a country. They
belong. Yet their country is letting them down, right from the
start, by failing to ensure that this belonging translates into
nationality – a legal bond that formalises their membership
of the community and provides protection, rights,
empowerment, a sense of acceptance and inclusion.
Under international law, the enjoyment of most human rights
is not contingent on nationality.34 This is also true for the
enjoyment of children’s rights.35 Yet, in practice the lack of any
nationality often severely obstructs the exercise of a wide array
of human rights.36 Recognising how important it is that everyone
holds a nationality, since as early as the 1930s, governments
have therefore sought to ensure that no child is left stateless by
concluding international agreements on the matter.37 This section
sets out the international framework according to which states
must ensure the right of every child to enjoy a nationality.
THE CONVENTION ON THE RIGHTS
OF THE CHILD AND OTHER RELEVANT
HUMAN RIGHTS INSTRUMENTS
Today, the right to acquire a nationality is firmly established
as a universal right of every child, thanks to its inclusion in the
Convention on the Rights of the Child (CRC) and numerous
other human rights instruments.38 Article 7 of the CRC
provides as follows:
1. The child shall be registered immediately after birth and
shall have the right from birth to a name, the right to
acquire a nationality and, as far as possible, the right to
know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights
in accordance with their national law and their obligations under
relevant international instruments in this field, in particular
where the child would otherwise be stateless.39
Article 8 of the CRC further protects the right of children to
preserve their identity, including nationality.
The general principles contained in the CRC are also
instrumental in interpreting and protecting children’s right to a
nationality, to better understand what is demanded of states.40
The four central principles are: the right to life, survival and
development,41 best interests of the child,42 respect for the
views of the child43 and non-discrimination.44 Statelessness can
impede a child’s development and even survival by obstructing
access to healthcare, for instance.45 Given this and the need
to give primary consideration to what is in the best interests
of the child whenever any decision or action is taken which
involves a child, children should not be left stateless for a long
period after birth but must acquire a nationality at birth or
as soon as possible after birth.46 Where children’s nationality
may be affected by the actions of their parents or of the state,
for instance in the case of renunciation or loss of nationality
during childhood, there should be space – as appropriate – for
the child’s opinion to be factored in. The principle of nondiscrimination implies, for instance, that regulations aimed at
preventing statelessness may not discriminate between children
on the basis of their or their parents’ status.47 Supplementing
this latter norm are numerous other human rights provisions
which explicitly outlaw discrimination in the enjoyment of the
right to a nationality. These include article 5 of the Convention
on the Elimination of All Forms of Racial Discrimination
(CERD) which prohibits racial or ethnic discrimination in
nationality rights; and article 9 of the Convention on the
Elimination of All Forms of Discrimination Against Women
(CEDAW) which prescribes equal nationality rights for men
and women – including with respect to the transmission of
nationality to their children.
ENGAGEMENT OF UN COMMITTEE
ON THE RIGHTS OF THE CHILD
ON CHILDREN’S RIGHT TO A
NATIONALITY IN EUROPE
The Committee on the Rights of the Child provides
authoritative guidance on and monitors the
implementation of the CRC by states parties. Through
the convening of General Days of Discussion and the
adoption of General Comments, the Committee helps to
deepen the understanding of states’ obligations under the
CRC in respect of particular themes and rights/articles.
The Committee periodically reviews states’ performance
through a reporting process and can now also receive
individual complaints against violations of the CRC in
respect of those states which have acceded to the Third
Optional Protocol on a communications procedure
(which entered into force in April 2014).
The Committee has yet to dedicate a General Day of
Discussion or General Comment to the question of
children’s right to nationality, which would help to further
crystallise how states are to realise this right through their
law and policy in accordance with the guiding principles
of the CRC, including in complex cases.48 However, the
Committee has issued recommendations on this topic
in the “Concluding Observations” it has adopted in
response to state party reports. Since it began this work
in 1993, a total of 128 state party reports submitted by
European states have been considered. The Committee
adopted Concluding Observations relating to children’s
right to a nationality in respect of 42 countries – a total
of 62 relevant recommendations in all – equivalent to
almost a third of these reviews. At the global level, 438
state party reports have been reviewed in all and 140
countries received recommendations relating to the right
to nationality. Recommendations to European states on
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