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Blood Or Soil, Which One Is Thicker? the Obligations of Eu Member-States for the International Protection of Stateless Children

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Blood Or Soil, Which One Is Thicker? the Obligations of Eu Member-States for the International Protection of Stateless Children UNIVERSITY OF NOTTINGHAM European Master’s Degree in Human Rights and Democratisation A.Y. 2016/2017 BLOOD OR SOIL, WHICH ONE IS THICKER? THE OBLIGATIONS OF EU MEMBER-STATES FOR THE INTERNATIONAL PROTECTION OF STATELESS CHILDREN Author: Caterina Parodi Supervisor: Dr Daria Davitti 2 ACKOWLEDGEMENTS This has been undoubtedly, the most challenging and yet stimulating journey of my life. I feel immensely grateful for the opportunity to study in such motivating and embracing environments and engage in so many though-provoking and inclusive discussions, which made me grow and contributed to a whole new dimension of self-awareness. First and foremost, to each and every child across the globe. For your right to be a child and for our duty to protect you and nurture you, for you are the future. Secondly, I have to express my most sincere gratitude to my thesis supervisor, Dr. Daria Davitti, my mentor in the field of Human Rights. For all your patience and support throughout this whole journey. For your inspiring and nurturing spirit, you are and will always be a reference. To all the E.MA staff, I thank each of you, for all the rewarding and involving experiences. To my family. For you are light and truth, you are my guidance and my home. To my father Enrico, my mother Cândida and my brother Carlo, for you are my greatest inspiration and pride, thank you for always believing in me and helping me pursue my dreams. To my vovó Alice and tia Susana, for I am made of you, of your love and care. To my Godson Duarte, for you are so little and yet teach me every day. Vocês são o meu início, meio e fim, o meu círculo perfeito. Vocês são resiliência, são o meu ponto de referimento e o meu Porto seguro. To my friends, who throughout my life accepted me and pushed me further. Empowered me and gave me strength. To the future, together. To my Neapolitan family, for all the love and care, thank you. A te che sei, semplicemente sei. Grazie per non desistere mai di me. Lastly, to each and every human being with whom I have crossed paths. For you inspire me, help me grow and push me forward. For that empowering discussion, that life lesson or for that simple smile while crossing the street. For there is not enough kindness in the world, and yet, I find it every day in someone new. For you are the world and the world is us. 3 4 ABSTRACT Statelessness has grave implications for the lives of millions of children across the globe. Without a nationality, children cannot have their rights effectively protected, despite the international protections enshrined in the Stateless Conventions. Whilst the UN launched a Global Action campaign to eradicate statelessness, many children seeking refuge in the EU are classified has having ‘undetermined’ nationality. These children grow up in limbo, completely unprotected. The aim of this dissertation is to critically evaluate the existing safeguards aimed at preventing childhood statelessness, while assessing EU Member-States compliance with them, both in law and in practice. The main argument advanced in this dissertation is that the discretion afforded to Member-States in this field allows for double- standards for the type and extent of protection granted to children. Consequently, it is advanced that the only way to effectively address this issue is by adopting a holistic child based-rights approach at the EU level and an independent monitoring system that helps harmonise the practice of Member-State and ultimately ensure a child’s right to nationality, especially when otherwise stateless. 5 TABLE OF CONTENTS ACKNOWLEDGEMENTS . 3 ABSTRACT . 5 LIST OF ABBREVIATIONS . 8 INTRODUCTION . .10 1. THE STATELESS PHENOMENON: THEORETICAL FRAMEWORK . .15 1.1. Nationality, Sovereignty and International Law . 16 1.2. Statelessness: the Quest for a Definition . 21 1.3. The Concealed Phenomenon of Statelessness in Europe . 28 2. CHILDHOOD STATELESSNESS IN THE CONTEXT OF FORCED MIGRATION. 30 2.1. The Importance of Nationality for Children . .31 2.2. Acquisition of Nationality at Birth: jus soli vs. jus sanguinis . 33 2.3. Children’s special vulnerability to statelessness in the Context of Forced Migration . .34 2.4. Discriminatory Laws of the Countries of Origin as a Contributing Factor to Satelessness at Birth. 36 2.5. Other Discriminatory Laws and/or Practices. .39 3. INTERNATIONAL LEGAL FRAMEWORK . 41 3.1. The 1954 Convention Relating to the Status of Stateless Persons. .43 3.2. The 1961 Convention on the Reduction of Statelessness. 44 3.3. The International Convention on the Rights of the Child. 48 3.4. An overall Analysis of the Relevant International Instruments. .53 6 4. EUROPEAN LEGAL FRAMEWORK . .59 4.1. European Convention on Nationality. .61 4.2. An Overall Analysis of the Relevant Regional Instruments. 63 5. SCRUTINIZING COMPLIANCE WITH INTERNATIONAL STANDARDS AMONG THE EU MEMBER-STATESS. 67 5.1. The State of the Art in Relation to the Respect of EU MS International Obligations. 68 5.2. Legal Safeguards in the EU MS Domestics Laws Aimed at Preventing Statelessness. .70 5.3. Domestic Safeguards to Prevent Statelessness at Birth. .71 5.3.1. Domestic Universal and Immediate Birth Registration. 76 5.3.2. The Importance of Stateless Determination Procedures. .78 6. TRENDS IN MS POLICY AND PRACTICE. 81 6.1. The Arising Phenomenon of the ‘Unknown Nationality’ Approach. .82 6.2. Discrimination in Practice: The Italian Example. .86 7. THE NEED FOR A HOLISTIC APPROACH TO STATELESSNES AND A RESPECTIVE MONITORING BODY. 90 CONCLUDING REMARKS. .93 7 LIST OF ABBREVIATIONS CEAS Common European Asylum System CEDAW UN Convention on the Elimination of all forms of Discrimination Against Women CERD Convention on the Elimination of all all forms of Racial Discrimination CJEU Court of Justice of the European Union CMW Committee on the Protection of the Rights of all Migrant Workers and Members of their Families CoE Council of Europe CoEU Council of the European Union ComRC Committee on the Rights of the Child CRC Convention on the Rights of the Child ECHR European Convention on Human Rights ECN European Convention on Nationality ECtHR European Court of Human Rights EMN European Migration Network ENOC European Network Ombudspersons for Children ENS European Network on Statelessness EU European Union EUDO Citizenship European Union Democracy Observatory on Citizenship HRC Human Rights Council HRCommitte Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice IHRL International Human Rights Law 8 IL International Law ILC International Law Commission ISI Institute on Statelessness and Inclusion LIBE Committee European Parliament’s Committee on Civil Liberties, Justice and Home Affairs MS Member States PETI Committee European Parliament’s Committee on Petitions SDP Stateless Determination Procedures TEU Treaty of the European Union TFEU Treaty on the Functioning of the European Union UDHR Universal Declaration on Human Rights UN United Nations UNHCR United Nations High Commissioner for Refugees 9 INTRODUCTION We live in a fully globalized world. A world where boundaries become less significant when facing transnational issues. A world where technology, information and progress make boundaries relative, where a gentle wave in one part of the globe can signify a tsunami in some other part of the world. The logical product of a world like ours, made of a patchwork of agreements and international diplomacy, would be unity – our human species aware of the challenges faced in the past, now united to overcome the future, in a spirit of pluralism, democracy and acceptance. Truth is, this could not be further from reality. After decades fostering inter-state relations and advancing human rights instruments, setting minimum standards and thresholds with the purpose of achieving equality and equity between all human beings, the ambition of all human beings being born equal in dignity and in rights1 seems to be slipping through our fingers now more than ever. If each and every ‘member of the human family’2 was to be born free and equal in dignity and in rights, every person would be directly and automatically bearer of a compound of inalienable human rights since birth. If this were to be true, nationality would not play a ponderous role on the enjoyment of civil, political, economic and social rights. But in fact, nationality matters,3 and is hence enshrined in the Universal Declaration of Human Rights (UDHR),4 the Convention on the Rights of the Child (CRC),5 and many other international and regional human rights instruments. Nevertheless, it is estimated that more than ten million people6 around the world live without a nationality,7 and a baby is born stateless every ten 1 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) Art 1 (UDHR). 2 Preamble of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 3 Jacqueline Bhabha, “The importance of nationality for children”, in Institute on Statelessness and Inclusion (ISI), The World’s Stateless Children (Wolf Legal Publishers, January 2017) 112. 4 UDHR art 15. 5 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. 6 UNHCR, ‘Global Trends: Forced Displacement in 2016’ <www.unhcr.org/statistics/unhcrstats/5943e8a34/global-trends-forced-displacement-2016.html> accessed 10 June 2017. 7 Please note that for the purpose of this dissertation the terms “nationality” and “citizenship” will be used interchangeably, as many international law and human rights scholars agree. See P Weis, Nationality and Statelessness in International Law (2nd edn, Sijthoff & Noordhoff International Publishers BV 1979) 3-7; Alice Edwards, “The meaning of Nationality in international law in an era of human rights” in Alice Edwards and Laura vas Waas (eds) Nationality and Statelessness under International Law (Cambridge University Press 2014) 11-14.
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