Comment on the Zhao Case
Protocol’) that permits individual communications.7 Second, Dutch law allows
municipal registration as ‘stateless’.8 Although statelessness does not constitute a
protected status, registration as ‘stateless’, in combination with other conditions,
has allowed individuals with access to a facilitated naturalisation process in the
Netherlands. Third, nationality and a child’s right to acquire one are justiciable
matters in the Netherlands.9 Finally, the Dutch state acknowledged the gaps in its
compliance with international human rights obligations and, on 31 May 2022, the
House of Representatives passed two laws that partially addressed the deficiencies
that were highlighted by Zhao.10
The crux of the ruling is that time is of the essence when children born on a
state’s territory are concerned. Because labels such as ‘of undetermined
nationality’ often prevent children from accessing rights necessary to protect their
best interests, the state must act to reach a nationality determination within a
maximum of five years. At minimum, this decision provides a meaningful
incentive for parties to the 1961 Convention on the Reduction of Statelessness
(‘1961 Convention’) to implement their treaty obligations regarding children born
on their territory without proof of nationality.11 More broadly, the views expressed
in Zhao have become part of the HRC’s jurisprudence and should be brought up
during reviews of states’ ICCPR compliance with art 24(3). Zhao’s findings may
be used to hold all ICCPR parties to the obligation to ensure that all children are
guaranteed the right to acquire a nationality at birth, regardless of their parents’
nationality (or lack thereof). Most immediately, the decision empowers stateless
persons and advocates for children born stateless in the MENA region to invoke
duties under art 24(3) of the ICCPR in the context of national and regional
campaigns for reform.
7
8
9
10
11
See Optional Protocol to the International Covenant on Civil and Political Rights, opened
for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 1
(‘Optional Protocol’).
European Network on Statelessness, Statelessness Index Survey 2020: Netherlands (Report,
2020) 12.
For information detailing the exhaustion of domestic remedies, see Denny Zhao,
Communication to the UN Human Rights Committee in Zhao v The Netherlands, 23
November 2016, 20–21 [83]–[88] <https://pilpnjcm.nl/wp-content/uploads/2016/11/ECD1507-Zhao-5-Communication-As-Sent-SB-11.23.16.pdf>.
See European Network on Statelessness, ‘Netherlands’, Statelessness Index (Web Page)
<https://index.statelessness.eu/country/netherlands>. The new laws fall short of effectively
applying art 24(3) as they impose significant hurdles for children without lawful residence in
the Netherlands and fail to extend protected status to stateless persons: ‘Netherlands Adopts
New Bills on Statelessness’, European Network on Statelessness (News Update, 1 June 2022)
<https://www.statelessness.eu/updates/news/netherlands-adopts-new-bills-statelessness>.
For the situation prior to these changes, and for further discussion of the gaps in the
Netherlands’ compliance with its international human rights obligations, see UNHCR
Mapping Statelessness in the Netherlands (Report, November 2011) 15–16 [31]–[34].
The HRC’s analysis in individual communications is, by its nature, limited to the case at hand.
It is unclear, in that sense, if the judgment in Zhao could be extended to communications
coming from countries that are not parties to the 1961 Convention on the Reduction of
Statelessness, adopted on 30 August 1961, 989 UNTS 175 (entered into force 13 December
1975) (‘1961 Convention’). For such countries, the concurring opinion of Hélène Tigroudja
suggests other theories for defending the right to nationality for all people, through ICCPR
art 16 (recognition of legal personality) and art 7 (humane treatment): Zhao v the Netherlands
(n 1) annex II, 12 [3].
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