Statelessness Risk of Syrian Refugee Children Born in Turkey
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Statelessness Risk of Syrian Refugee Children Born in Turkey Elveda DANA GALE Anr: 797665 Tilburg University LLM International and European Public Law: Human Rights Law Master Thesis Supervisor Dr Nanda OUDEJANS TILBURG 2016 1 2 Table of Content 1. INTRODUCTION………………………………………………………………………… 5 1.1 The Problem of Statelessness…………………………………………………………...5 1.2 The Background of the Syrian Refugee Crisis……………………………………….... 7 1.3 The Story of Dr. Nazir………………………………………………………………....10 1.4 Research question and Sub-questions………………………………………………….11 1.5 Methodology………………………………………………………………………….11 1.6 Outline………………………………………………………………………………….12 2. TURKEY…………………………………………………………………………………..13 2.1 International Legal Framework………………………………………………………...13 2.1.1 The 1951 Refugee Convention and 1967 Protocol………………………………...14 2.1.2 The 1954 Convention and the 1961 Convention…………………………………..16 2.2 National Legal Framework…………………………………………………………….18 2.2.1 The Legal Position of Syrian Refugees in Turkey…………………………………19 2.2.2 Non-Homogenous Syrian Refugees………………………………………………..21 2.2.2.1 Children who born from Syrian people who also have Turkish nationality…..21 2.2.2.2 Children who born in Turkey and have stateless mother-father………………23 2.2.2.3 Syrian Citizens’ Children who Born in Turkey……………………………….24 2.3 Gaps in the System……………………………………………………………………..25 2.3.1 Birth Registration…………………………………………………………………..26 2.3.1.1 Acquiring a Birth Certificate in Turkey……………………………………….26 2.3.1.2 Obstacles of the Birth Registration……………………………………………28 2.3.1.3 The Reasons to Do Not Make Registration…………………………………...31 2.3.2 Illegal Marriages…………………………………………………………………...33 2.4 Possible Remedies……………………………………………………………………..36 3 2.5 Conclusion……………………………………………………………………………..38 3. SYRIA……………………………………………………………………………………..42 3.1 International Legal Framework…………………………………………………………43 3.2 National Legal Framework……………………………………………………………..49 3.3 Gaps in the System and Possible Remedies……………………………………………50 3.4 Conclusion on Chapter on Syria………………………………………………………..53 4. CONCLUSION……………………………………………………………………………55 5. BIBLIOGRAPHY…………………………………………………………………………57 4 1. INTRODUCTION 1.1. The Problem of Statelessness Awareness of the statelessness problem has increased in recent years. For decades, the problem of statelessness was in the background. Millions of people have been profoundly affected by this problem. The term ‘statelessness’ is defined as “a person who is not considered as a national by any state under the operation of its law” by the United Nations Convention Relating to the Status of Stateless Person.1 Being stateless incurs many obstacles to the access of fundamental rights since fundamental rights require nationality. According to UNHCR data, there are at least 10 million stateless people; yet, this number is not precise due to the difficulties in the determination and sharing of statistics within concerned states.2 Having a nationality is a remarkable matter in international human rights. There are quite a number of international instruments which include articles and underline the importance of the right to have a nationality. For instance, Article 15 of the Universal Declaration of Human Rights states that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” The right to a nationality is usually related with the protection of the rights of children and the principle of non-discrimination. For example, Article 7 of the Convention on the Rights of the Child states that every child has the right to acquire a nationality3, while Article 5 of the Convention on the Elimination of all Forms of Racial Discrimination4 requires States to “prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national 1 Convention Relating to the Status of Stateless Persons [1954] UNTS 117, art 1 2 The United Nations High Commissioner for Refugees (UNHCR), ‘Ending Statelessness’ <http://www.unhcr.org/stateless-people.html> accessed 1 May 2016 3 United Nations Convention on the Rights of the Child [1989], UNGA Res 44/25 (CRC), art 7 4 International Convention on the Elimination of All Forms of Racial Discrimination [1965], art 5 <http://www.ohchr.org/Documents/ProfessionalInterest/cerd.pdf > accessed 3 June 2016 5 or ethnic origin, to equality before the law, notably in the enjoyment of the following rights…the right to nationality.”5 The main causes of statelessness are conflict of laws, state succession, the legacy of colonization, arbitrary deprivation of nationality, administrative barriers and lack of documentation, and the inheritance of statelessness.6 Likewise, war, civil war, and migration are other underlying causes that increase the risk of being stateless. For example, people might have to leave their homes to save their lives without any documentation, they might lose their nationality while living abroad for a long time dependent upon the nationality law of their home state and any children born in these scenarios are also at risk. Stateless children are the most vulnerable group of people, as they need representation to stand for their rights. They have the right to “acquire nationality” as determined under Article 7 of the United Nations Convention on the Rights of the Child.7 The next article of the same convention gives duty to states to “undertake to respect the right of the child to preserve his or her identity, including nationality”.8 Also the Convention on the Reduction of Statelessness describes its main focus as “the prevention of statelessness at birth by requiring States to grant citizenship to children born on their territory, or born to their nationals abroad, who would otherwise be stateless”9. Unfortunately; in every ten minutes, a stateless child is born.10 These children face the danger of violations of children’ rights by virtue of being stateless. They would still get access to these rights under the preservation of states; however it is true to say that they are at risk of being denied their rights to education, social welfare, 5 International Justice Resource Center, ‘Citizenship & Nationality’ <http://www.ijrcenter.org/thematic-research- guides/nationality-citizenship/> accessed 3 May 2016 6The Institute on Statelessness and Inclusion, ‘Causes of Statelessness’ <http://www.institutesi.org/world/causes.php> accessed 1 May 2016 7 Ibid, (n3) 8United Nations Convention on the Rights of the Child , (n3) art 8 9 Convention on the Reduction of Statelessness [1961], ‘Text of the 1961 Convention on the Reduction of Statelessness’ Introductory Note [2014] <http://www.unhcr.org/protection/statelessness/3bbb286d8/convention- reduction-statelessness.html> accessed 3 May 2016 10 Michael Pizzi, ‘A stateless child is born every 10 minutes, UN refugee agency says’ Aljazeera America (3 November 2015) <http://america.aljazeera.com/articles/2015/11/3/unhcr-stateless-child-born-every-10- minutes.html> accessed 3 May 2016 6 health care and nationality which are defined under the CRC.11 Likewise, their social- economic vulnerable social-economic position exposes them to other dangers such as human trafficking and abuse. To stop the growth in the number of stateless people and to propose a remedy to the issue of statelessness, the prevention of children born stateless is crucial. Cutting the problem from the first moment, at birth, would play a huge role in reducing the number of stateless people. For childhood statelessness, lack of birth registration, lost birth records, discriminatory nationality laws on women are the main causes. Another important matter involves migration from country to another one if nationality is based on jus soli (by soil).12 As will be examined in this work, the Syrian refugee crisis increases the risk of being born stateless abroad. One of the most tremendous global migration issues is currently taking place as a result of the conflict in Syria. Millions of people have had to flee from their homes to neighboring countries. It does not have to end with statelessness; yet, there are still huge risks that must not be underestimated, particularly the risk of children being rendered stateless. 1.2. Background of the Syrian Refugee Crisis In March 2011, pro-democracy protests broke out in Syria as an unexpected attempt to unseat the Syrian government. These antigovernment protests were the continuation of similar protests in the Middle East and North Africa.13 The Arab Spring that had begun in December 2010 showed its influence on protesters in Syria after starting in Tunisia, Egypt, Libya and Yemen. The Syrian Army responded to these protests.14 Unlike previous leaders from Tunisia 11 United Nations Convention on the Rights of the Child (n3) arts 7, 8, 24, 26 and 28 12 Maureen Lynch and Melanie Teff, ‘Childhood statelessness’ (2009) FMR 32, 31-33 <http://www.fmreview.org/sites/fmr/files/FMRdownloads/en/FMRpdfs/FMR32/FMR32.pdf> accessed 3 May 2016 13 The Editors of Encyclopædia Britannica, ‘Syrian Civil War’ (2015) <https://www.britannica.com/event/Syrian-Civil-War> accessed 5 May 2016 14 BBC News Middle East, “Syrian army tanks 'moving towards Hama' ” (Middle East,10 May 2011) <http://www.bbc.com/news/world-middle-east-13343540> accessed 6 May 2016 7 and Egypt, the president of Syria responded harshly to anti-governmental protesters, and did not show any toleration for the protesters’ desires.15 In the words of Andrew Tabler who is an expert on Syria; “The Syrian Civil War is arguably