for children born to non-nationals should be in place, to identify whether the child is
entitled to another nationality or whether they would otherwise be stateless, and legal
safeguards for the prevention of statelessness should therefore be applied. In particular,
the Human Rights Committee held that the Netherlands’ international obligations
require the State ‘[…] to ensure that a procedure for determining statelessness status is
established, as well as reviewing its legislation on eligibility to apply for citizenship […].’16
Indeed, all otherwise stateless children must acquire the nationality of the State in which
they are born, either automatically at birth or as soon as possible after birth. To this end,
the Netherlands has included special rules in the Dutch Nationality Act to prevent
statelessness. However, legislative and administrative gaps in these rules and their
application mean that statelessness is not prevented for all children born in the
Netherlands, and many are registered as having “nationality unknown”, contrary to
international law.
Legislative gaps in ensuring the right to a nationality for stateless children in the Netherlands
12. In the Netherlands, birth on the territory does not generate an automatic entitlement
to Dutch nationality. For children born in the Netherlands who would otherwise be
stateless, Article 6(1)(b) of the Dutch Nationality Act (DNA)17 provides for a procedure
to obtain Dutch nationality: the so-called “option procedure”. However, it discriminates
against children born stateless on the territory on the basis of their residence status.
Accordingly, this Article requires that:
“After making a written statement to this effect Dutch citizenship is obtained by […] b)
a non-national who is born in the European part of the Netherlands, Aruba, Curaçao,
Sint Maarten, Bonaire, Sint Eustatius or Saba, and during an uninterrupted period of at
least three years has admission and principal residence and has been stateless from
birth.”18
13. The language of “admission and principal residence” in this provision means that Dutch
law currently requires stateless children to have three years’ legal residence in the
territory before being able to opt for Dutch nationality. Therefore, stateless children
born in the country without a residence status are excluded from acquiring Dutch
nationality. Furthermore, where the statelessness of a child cannot be proven with
official documents upon registration in the Dutch population registry – a highly
bureaucratic burden – then a child is instead registered as having “unknown” nationality.
This prevents them from using the ‘option procedure’ and amounts to a violation of their
right to a nationality. This and the aforementioned conditions are inconsistent with
Article 7 CRC on realising every child’s right to a nationality and Article 3 CRC on the best
interests of the child, as children are denied their right to a nationality for years.19 The
origin, transit, destination and return, 2017, available at: https://www.refworld.org/docid/5a12942a2b.html; Recommendation
CM/Rec(2009)13, adopted by the Committee of Ministers of the Council of Europe on 9 December 2009, available at
https://rm.coe.int/16807096bf.
16 CCPR/C/130/D/2918/2016. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26631&LangID=E.
17 2010 Dutch Nationality Act, Article 3,
https://www.legislationline.org/download/id/5937/file/Netherlands%20Nationality%20Act_2010_en.pdf
18 Ibid Article 6(1)(b) Dutch Nationality Law. The original text in Dutch reads: “Na het afleggen van een daartoe strekkende
schriftelijke verklaring verkrijgt door een bevestiging als bedoeld in het derde lid het Nederlanderschap […] b) de vreemdeling
die in het Europese deel van Nederland, Aruba, Curaçao, Sint Maarten of de openbare lichamen Bonaire, Sint Eustatius en Saba,
is geboren, aldaar gedurende een onafgebroken periode van tenminste drie jaren toelating en hoofdverblijf heeft en sedert
zijn geboorte staatloos is”.
19
1989 Convention on the Rights of the Child, Article 3.
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