“Soft Law” Entrepreneurship and the Right of the Child to a Nationality in an Era of Migration

Abstract

Nationality and statelessness continue to be contested areas of international human rights law. While the right to acquire a nationality is firmly established several international instruments, it is still not clear precisely how this right operates. Which state has an obligation to grant its nationality? To whom? And when? This lack of specificity is a consequence of the fact that the right to determine who is national and who is not has been at the core of state sovereignty for centuries. In fact, it is only the last half century or so that states have begun to acknowledge that nationality determination is subject to certain limitations. (1) At the same time, the need to establish clearer norms is greater than ever. Today, 3.1 percent of the world's population are migrants. While the percentage of migrants has remained fairly stable over the last decade, the total number has increased from 150 million 2000 to 214 million 2010, according to the International Organization for Migration. (2) Most migrants have a nationality somewhere, although a relatively small number does not: they are However, for all migrants access to nationality--whether their state of origin or the country of residence--is important to ensure access to a host of other rights and services including identity documentation, diplomatic protection, consular services, health care, social security, education, and work. In the particular fields of nationality and statelessness, the problem is not so much the lack of an international regime, but rather that the existing regime is very weak. Basic norms exist, and to the extent that these norms deal with reduction, prevention, and avoidance of statelessness, UNHCR has a clear international mandate. The weakness stems from the lack of specificity as to the operation of existing norms, as alluded to above. Because of this, activists and policymakers have turned to subsidiary sources of international as well as soft law order to strengthen the legal framework and achieve and policy reform. In this short essay the role of strategic litigation, resolutions by the UN Human Rights Council, and international expert consultations will be highlighted. Treaty law, and to a lesser extent customary international law, provides some fundamental norms this field. With respect to the particular right of the to a nationality, the Convention on the Rights of the Child (CRC) stipulates Article 7 that every has a right to acquire a nationality, and that this right should be implemented in particular where the would otherwise be stateless. This provision mirrors the International Covenant on Civil and Political Rights (Article 24), as well as several regional instruments which often provide more detail as to how the right should be implemented. At regional levels Africa, Europe, and the Americas, different treaties provide that the has a right to acquire the nationality of the country of birth if the would otherwise be (3) We also find this norm the Convention on the Reduction of Statelessness. Indeed, this would be the most logical interpretation of CRC Article 7 too, especially light of the best interest of the child principle contained Article 3. However, the Committee the Rights of the Child has yet to provide guidance on interpretation of Articles 7 and 8. Enforcing the right of the to acquire the nationality the country of birth if the would otherwise be stateless is an effective way to reduce and prevent statelessness among migrant children. This was recently attempted the case of Nubian Children v. Kenya. (4) Nubian children Kenya have suffered from discrimination access to nationality, and some cases statelessness, for many decades. The case was brought before the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) by the Open Society Justice Initiative and the Institute for Human Rights and Development Africa, on behalf of Nubian children. …