View Adopted: 2020.10.19
The author’s mother was born in China in 1989, but her birth was not registered in the civil records in that country. Such registration is performed, and civil status is established, through an individual’s inclusion in a household registry. After her brother was born a few years later, her parents abandoned her. Due to this reason, the authors mom was unable to obtain proof of Chinese citizenship and holds no documentation proving her identity. She then received a temporary residence permit, that was later denied, and she was classified as an illegal alien. The author’s father is not in contact with him or the mother and has failed to recognise paternity.
The author was born in Utrecht in 2010 and was registered in the Municipal Personal Records Database where he was given an “unknown nationality”, as his mother had no records to prove his nationality. The author’s mother has made several attempts to confirm Chinese nationality for her son, in order to satisfy the Netherlands legislation that a person must provide conclusive proof of nationality, in order to change their status from “unknown” in the civil registry. These attempts have either been unsuccessful, or the author has been confirmed that in order to gain proof of nationality, that she would need to be registered in the Civil Registry of China. For these reasons, the author’s mother has been unable to change the author’s nationality entry in the civil registry to stateless, so that he can enjoy the international protections afforded to Stateless children, including the right to acquire the nationality of the state in which he was born in – which is the Netherlands.
In 2012, the author’s mother lodged a request to the civil registration department of the municipality of Utrecht, that her son’s nationality be recorded as ‘stateless’ instead of unknown. In the municipality’s eyes – the author’s nationality was Chinese according to the Chinese law. The author’s mother lodged an appeal against this decision, which was rejected as there was no proof that the child was stateless – as there needed to be official documentation from Chinese authorities stating such. The Council of State concluded that the author’s mother had failed to provide proof of the child’s statelessness, and that there weren’t any rules within national or international law that could aid this legal gap that has been concluded.
In 2015, the author applied to the municipality of Katwijk for recognition as a Dutch citizen, arguing that he should be allowed access to nationality despite his lack of registration as a stateless person. The Mayor of Katwijk acknowledged that the State party lacked a determination procedure for the author and to determine his statelessness. But the appeal commission concluded that it was not up to the Mayor to fill this gap in procedure and rejected the author’s appeal. This was upheld by the Council of the State in 2016.
Due to all of this, the author lives with his mother in a restricted freedom centre filled with failed asylum seekers with young children. These people live in constant fear, health problems, family tensions and social exclusions from living in these restricted centres. As the author lives in legal limbo, the author submits the complaint that the lack of the State party’s approach of addressing statelessness and rules relating to residency rights and acquiring nationality – that this violates his rights under article 24(3) of the Covenant. He argues this on the basis that after 6 years of filing petitions to gain nationality from the State he was born in, while all the while being registered as “unknown nationality” – that he still has not prospect of acquiring nationality or even formally establishing his statelessness. Additionally, the author argues that the State failed to provide him with an adequate effective remedy, thus the violation of article 24(3) may be read in conjunction with article 2(3).
The Committee notes that the author has exhausted all effective remedies available to him. And that according to the author’s arguments for his rights being violated under article 24(3), that these arguments are sufficiently substantiated in accordance with the Optional Protocol. Therefore, this communication is declared admissible.
The Committee notes that under article 24 of the Covenant, every child has the right to special measures of protection because of their status as a minor. It recalls that the primary consideration in all decisions, should consider the best interests of the child. The Committee recalls though that general comment No.17, does not oblige a State to give their nationality to every child born in their territory – but that every state should take internal decisions and cooperate with other States to make sure that every child is born with a nationality. In addition to this, the UNHCR Guidelines on Statelessness No.4 states that States need to determine the nationality of a child, once it has been undermined for a while – in order to not prolong this period of “unknown nationality”. This period should not exceed 5 years, that even when the nationality of a child is undetermined, that they should still have full enjoyment of human rights equal in terms of children who are citizens.
The Committee further recalls that in the concluding observations on the State party’s fifth periodic report, that it had already expressed concern over reports that the State had drafted legislation to determine the statelessness of children – that were not in line with the international standards. Similar recommendations were made by the Committee on the Rights of the child.
The Committee notes that in the present communication, that the author’s mother had made several attempts to various entities in order to gather proof to be able to register her child within the municipal laws. That all these attempts were unsuccessful and that the domestic authorities did not attempt to aid the mother to gather some form of proof – thus, all her attempts to confirm the author’s nationality status would be futile.
Bearing all this in mind, the Committee is in the view that the above mentioned facts display a violation of article 24(3) read alone and read in conjunction with article 2(3) of the Covenant.
The State party is obligated, inter alia, to :
Additionally, the State party is under an obligation to take all steps necessary to avoid similar violations in the future, including by reviewing its legislation in accordance with its obligation under article 2 (2) of the Covenant to ensure that a procedure for determining statelessness status is established, as well as reviewing its legislation on eligibility to apply for citizenship, in order to ensure that its legislation and procedures are in compliance with article 24 of the Covenant.
The Committee wishes to receive information from the State party, about the measures taken to the effect to the Committee's views within 180 days. Date to be received: 17 April 2021.
Individual opinion of Committee Member Yadh Ben Achour (concurring)
Mr Achour fully agrees with the Committee’s finding of a violation of the author’s rights according to the communication but has provided a somewhat dissenting opinion as to how the Committee decided to treat the claim made in regards to article 2(2) when read in conjunction of article 24. The Committee held, based on previous jurisprudence, that since they had dealt with article 24 on its own, they did not see the point in dealing with Article 2(2) read in conjunction with article 24. Mr Ben Archour disagrees with this stance, as he provides that regardless of article 24, the State party’s actions in failing to adopt new administrative laws, in itself, would violate article 2(2) under the Covenant. Due to this, Mr Ben Achour does not understand how the Committee considered this part of the communication as inadmissible.
Individual Opinion of Committee Member Hélène Tigroudja (concurring)
Ms Tigroudja fully agrees with the outcome of the Communication by the Committee but refers to Mr Ben Achour’s individual opinion in stating that she too believes that the Committee erred in their judgement on other branches of the Covenant. Ms Tigroudja is specifically speaking about article 16 (recognition of legal personality) and article 7 (human treatment) – that the Committee failed to address adequately. As confirmed by various other International bodies and Covenants – stateless children are extremely vulnerable and are placed in a legal limbo as they do not have a recognised juridical personality and have no legal personality with the State. Thus, instead of the Committee only focusing on the violations of his right to have a nationality – whereas the Committee could have gaged that having no nationality, would ultimately link to not having a legal personality and this leading to some form of inhuman treatment by the State.
For another look at the Communication at hand, please do read: https://news.un.org/en/story/2020/12/1081062