SECTION 2: Ensuring the Right to Nationality
84.
The right to nationality is a fundamental
right provided for in a number of international
human rights instruments. Ensuring nationality is critical in protecting the rights of children.
Nationality could particularly be determinative for children affected by the foreign fighter
phenomenon as it relates to jurisdiction and
responsibility of a State beyond its territory.
Nationality is also closely linked to a State’s duty to
admit a child and its responsibility for repatriation,
rehabilitation and reintegration. A child’s
nationality strongly influences social identity and
thus her or his development. This in turn may also
have security implications, as children without
nationality risk being marginalized and exploited
by designated terrorist groups in the long run.
may present additional hurdles.150 Currently, most
Governments do not offer repatriation assistance
to citizens in the conflict zones of Iraq and the
Syrian Arab Republic, including men and women
who are suspected of being “foreign terrorist fighters” and their children.151 Some States also lack
representation in those areas and are unable to
provide effective consular services. For legal, practical and political reasons, some countries offer
such assistance only when their nationals manage to appear at their embassies or consulates
and their nationalities are established, including
through DNA testing. This situation raises questions as to how these States are implementing
their obligations to children who, under the law,
are entitled to nationality by descent.
85.
Despite the right to nationality being
provided for under international law, including
in the Convention on the Rights of the Child,
children affected by the foreign fighter
phenomenon may face a significant risk
of becoming stateless. The risk arises
broadly in two scenarios. First, a child
may be denied recognition as a national
because the situation links him or her to the
foreign fighter phenomenon. A lack of
documentation, such as passports or birth
certificates, may make it difficult to establish
nationality through her or his parents
(jus sanguinis). Some children have only birth
certificates issued by non-State actors, including
in some cases designated terrorist groups, which
are unrecognized by all Member States. Denial of
the rights of women and girls to confer their
nationality upon their children or nationality
laws that are discriminatory on other grounds
86.
Second, a child may be affected by the
deprivation of nationality as a counter-terrorism
measure. Some States have adopted legislation
enabling authorities to revoke citizenship under
specific circumstances, such as when the return
of a citizen is considered to present a threat to
national
security
or
the
vital
interests of the State. In many States, this
measure may only be taken only when
individuals possess dual or multiple nationalities. Some domestic legislation, however, does
not provide protection against statelessness.
Any measures that affect the nationality of a
150 S/2016/361, para. 16.
151 Breanda Stoter, “Born in the wrong place: Europe’s Islamic State offspring”, Al-Minotor, 10 January 2018, available at
www.al-monitor.com/pulse/originals/2018/01/islamic-stateiraq-syria-children-mothers-europe-return.html; Abigail R.
Esman, “Young But Dangerous: Still No Answer to Handling
Europe’s Children of ISIS”, The Investigative Project on Terrorism, 22 January 2018, available at www.investigativeproject.
org/7285/young-but-dangerous-still-no-answer-to-handling.
39.