The United Nations Human Rights Committee (Committee)  in Zhao v the Netherlands ruled that Netherlands violated a child’s right to nationality by not acknowledging Denny Zhao, a child born in the Netherlands but registered with an unknown nationality in the Dutch Civil registry of Utrecht. The registry not only denied him the Dutch nationality but also prevented him from being acknowledged as stateless, violating his access to be eligible for international protection as a stateless child, leaving him in legal oblivion.

The ‘Case’

Denny Zhao, a child born in Utrecht in 2010 to a 21-year-old Chinese mother, filed a petition before the committee. Mr. Zhao’s mother was transported to the Netherlands in 2004 at the age of fifteen and coerced into sex trafficking because she was not registered in China’s civil records and thus incapable of acquiring evidence of Chinese citizenship. She subsequently managed to escape in 2008, after four years, and reported the incident to the Dutch Police authorities. However, the police dismissed the investigation because they were unable to recognize her traffickers. Her temporary residency visa was withdrawn and her status was reclassified into illegal alien after investigation. Thereafter, Denny was registered in the Dutch Municipal Personal Records Database as holding unknown nationality.

Mr. Zhao’s mother could not provide any concrete evidence of his lack of nationality, as regulated by Dutch law, to alter Mr. Zhao’s civil registry access to stateless and stimulate the protection and privileges conferred to stateless child under international and domestic law which inter alia includes the right to acquire a nationality. The district court of Midden-Nederland, in a judgment on an administrative appeal, concluded that the standard of proof in these instances is on the claimant, and that Dutch authorities are not obligated to undertake investigations or evaluate stateless person’s status. Despite numerous efforts, Mr. Zhao and his mother were subjected to live as restricted unsuccessful asylum seeker with a constant fear of deportation. Subsequently, in 2016 a petition was filed before the UN Human Rights Committee in accordance with violation of Article 24 of the International Covenant on Civil and Political Rights (ICCPR) to which Netherlands is a signatory state.

Court’s rationale: Right to acquire a nationality

The Committee in its judgment reiterated the right of the child to specific protection under Article 24 of the ICCPR, including the greatest interest of the child. The Committee drawing reference from  General Comment No. 17, observed in paragraph 8 that the state has the obligation to initiate every appropriate measure to ensure, that every child has a nationality when he is born.  While the Committee affirmed that the intention of Article 24.3 is to prohibit a child from obtaining inferior protection because of his or her lack of nationality, it did not go so far as to indicate that states have obligations to bestow nationality on every child born on their territory. As a well-established tenet of international law, states are entitled to identify who is and is not a national, at least a priori in Tunis and Morocco Nationality Decrees. While this competence is not conclusive, international law specifies the constraints within which states can employ it.

The principle of non-discrimination inherent in Articles 2 and 24 of the ICCPR, which prevails, particularly in respect to the means of acquiring nationality, is one such constraint, as General Comment No. 17 emphasizes in paragraph 5. That is, if a state utilizes the jus soli doctrine [the laws of the State in which the person was born] as the sole mechanism for conferring nationality, it cannot discriminate among children born to single mothers, married couples, or between children born to stateless parents and those impregnated by individuals of a specialized nationality. In this instance, the child’s parents’ civil and nationality statuses are inconsequential.

Question of stateless person

The Committee on the question of who is stateless reiterated the Statelessness Convention 1961 (1961 Convention) and the UNHCR Guidelines on Statelessness No. 4. The committee following UNHCR Guidelines observed in paragraph  8.5, that a person will not be recognized as a national of a given jurisdiction if the officials of that state refuse to acknowledge that person as a national. The Committee establishing that when a person lacks a specific nationality, it does not require a definitive, stringent threshold of proof. In the Zhao’s case, Chinese authorities declined to recognize Mr. Zhao’s nationality, therefore it is sufficient enough to constitute Mr. Zhao is not a Chinese national.

This is a weaker evidential standard than that provided by the 1954 Convention on Stateless Status in Article 1(1), which states that a person is stateless if they are not recognized as a national by any State under the operation of its law. The Article 1(1) of 1954 Convention’s definition as per the International Law Commission, has now become part of customary international law. It is significant in determining the breadth of applicability of the 1961 Convention’s term ‘would otherwise be stateless’. However, surprisingly the Committee takes no reference to the 1954 Convention on the Status of Stateless Persons (1954 Convention) [to which the Netherlands is a signatory,], which incorporates a precise understanding of statelessness and provides stateless people a slew of rights and protections.

Furthermore, given the pragmatic limitations in determining whether or not an individual has attained nationality, the UNHCR Guidelines on Statelessness No. 4 indicate in para 20 that the onus of proof must be balanced between the claimant and the officials of the contracting state. This seemed to be the appropriate methodology, because many stateless people are basically still unable to back up their position with much, if any, documentary evidence. This interpretation is also supported by the UNHCR Handbook on the Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons, which states in Para 89-92 that in the event of statelessness determination, both the applicant and examiner must collaborate to gather evidence and prove the fact.

Unknown nationality or stateless identity?

Concerning the need of nationality unknown in Mr. Zhao’s civil databases, the Committee recognized that states are required under Article 1 of the 1961 Statelessness Convention to ascertain whether a child would otherwise be stateless as soon as possible so as not to exacerbate a child’s status of unknown nationality. The expression would otherwise be stateless signifies that the child would be stateless unless a Contracting State with which he or she has a relationship through birth in the territory or birth to a national of that State confers that child nationality. To ascertain whether a child would otherwise be stateless, it is necessary to ascertain if the child has gained the nationality of another State, either through his or her parents (jus sanguinis principle) or through the State on whose territory he or she was born (jus soli principle). When both parents are stateless and the child is conceived in a country that does not give nationality depending on birth in the territory, the child has always been stateless. Children could also be stateless if they are born in a state that does not follow the jus soli doctrine and if one or both parents have a nationality but cannot confer it on their children.

The assessment is whether a child is stateless because he or she inherits neither the nationality of his or her parents nor that of the State of his or her birth; the assessment will also exclude the question of whether the child’s parents are stateless or not. Curtailing the applicability of Article 1 of the 1961 Convention to children of stateless parents is inappropriate in approach of the numerous scenarios in which a child might be stateless, and it is also contradictory to the language of the provisions. In other words, the Dutch officials ought to ultimately decide whether a child would otherwise be stateless’ as soon as reasonably practicable so that the child’s position of undetermined nationality is not prolonged.

The Committee reflected the UNHCR Guidelines, and observed that the Dutch Civil registry was required to follow the 1961 Convention to determine the rationale. The Committee ruled while applying the  Article 1 and 4 of the 1961 Convention, the period should not exceed five years and throughout that period these children are also to exercise human rights (such as healthcare and education) on equivalent footing as citizens’ children.

Zhao’s remedies & obligations of Netherlands

In terms of remedy, the Committee found that the Netherlands was compelled to recompense the author appropriately, to reconsider its determination on whether Zhao was stateless, and to reconsider its decision on Zhao’s application to be recognised as a Dutch citizen. The Netherlands was also directed to evaluate Zhao’s living conditions and residency permit in light of the greatest welfare of the child premise and the Committee’s conclusions.

Furthermore, the Committee stated that the Netherlands was obligated to take all appropriate measures to prevent analogous violations in the future, including a review of its legislation, to ensure that its methodology for determining statelessness status and eligibility requirements for citizenship is consistent with the Covenant. The Committee sought information from the Dutch government on the steps taken to implement its recommendations within 180 days.

Beyond court’s rationale

In Netherlands, there are presently around 4,000 stateless individuals. Another 90,000 individuals are registered as unknown nationality‘s including 13,000 children born in Netherlands. For a number of circumstances, the Dutch government labels a person as having unknown nationality. It most frequently pertains to undocumented refugees or people from deceased governments seeking a new nationality. In September 2016, the overall number of unknown nationality registrations was 74,055, comprising 13,169 children under the age of ten [as per Dutch Central Bureau of Statistics]. In the UNHCR Report on Mapping Statelessness in the Netherlands, it was asserted that it could perhaps be problematic to precisely estimate the number of stateless persons in the Netherlands without such a method and a binding determination. Thereafter, the Dutch government has indicated a Statelessness Determination Mechanism in an attempt to reach its international obligations under the Statelessness Conventions. The Committee concluded that new Statelessness Determination Mechanism of the Netherlands did not satisfy international conventions because it did not ensure that an individual recognized as stateless is conferred a residence permit so that he/she/they can completely exercise his/her/their rights enshrined under the ICCPR.

The Committee with its observation in Zhao case joins human rights bodies like the African and Inter-American Court in eradicating obstacles that prohibit children at jeopardy of statelessness from exercising their right to nationality. However, the committee took an exclusive threshold, not connecting the right to acquire a nationality with other rights inter alia including legal recognition [Article 16] and the right to dignity [Article 7]. Conversely, in reaching this conclusion, the Committee acknowledged that the problem is structural, and instead of administering a resolution for Zhao individually, it urged that the Netherlands establish a framework that would provide meaningful redress for other similar cases. Nevertheless, the Committee ruling is a humongous milestone toward alleviating the inequalities and injustices that children face as a result of becoming stateless as observed in the UNHCR Mapping Study.