Zhao v Netherlands – The importance of having a statelessness determination procedure is clear, so why is the Netherlands still in denial?

In this blog I consider the recent decision of the UN Human Rights Committee (UNHRC) ¹ in the case of a young boy living in the Netherlands, Denny Zhao.  Zhao is registered as of ‘nationality unknown’ rather than stateless. Under current Dutch law and procedure he has no prospect of finding protection as a stateless person, becoming a Dutch citizen, or of obtaining a residence permit.

The decision of the Committee in the case of Denny Zhao goes to the heart of what it means to be stateless. The Committee highlights the protection gap experienced by stateless individuals living in states that do not have a statelessness determination procedure.  This is the first time that the Committee has engaged with the issue of statelessness to this extent.

 

The UNHRC and the ICCPR

The UN Human Rights Committee is an expert body composed of 18 experts.  The body was established by the International Covenant on Civil and Political Rights (ICCPR) and is empowered to discuss matters as they relate to that treaty.  UNHRC is mandated to receive reports from state parties on the implementation of the treaty and to hear individual complaints or communications to the Committee that individuals’ rights under the ICCPR have been violated.  This avenue of redress is only open to individuals whose states are parties to the First Optional Protocol to the ICCPR ².

The Committee has considered the complaint of a stateless person only a handful of times to date ³, but the issue of statelessness was only tangential to the proceedings and was not fully explored.

 

Background to Denny Zhao’s complaint

Zhao’s mother was abandoned by her parents without proof of her identity or Chinese citizenship. She has no identity documents.  She was trafficked to the Netherlands in 2004. Subsequently, her asylum application was rejected.  Zhao was born in Utrecht in 2010, but as his father would not claim paternity, he could not take on his citizenship.  His mother could not, despite several attempts, obtain or confirm Chinese citizenship for Zhao.  Dutch authorities registered Zhao as ‘of nationality unknown’.   Attempts to register Zhao as stateless have proved fruitless.  The strict proof required under domestic rules, and the lack of an appropriate statelessness determination procedure make it impossible to change Zhao’s status. This means that he cannot benefit from the protection offered by the 1954 Convention relating to the Status of Stateless Persons.

Zhao’s case hinges on the argument that the status of nationality unknown leaves him with no prospect of acquiring a nationality, resulting in a violation under Article 24 ICCPR ⁴ alone and in conjunction with articles 2(2) and 2(3) ⁵ of that Treaty.

Unless he is registered as stateless, Zhao cannot begin the process of acquiring Dutch nationality.  But, in fact, even if he were to be registered as stateless, without also obtaining a residence permit, Zhao would still have no way of acquiring Dutch nationality.  This is because the Netherlands requires that children born stateless in the country hold a lawful residence permit for at least three years before they are eligible to apply for Dutch nationality.  This position contravenes the Netherlands’ obligations under the 1961 UN Convention on the Reduction of Statelessness, under which States may only impose habitual residence requirements.

 

The Netherlands and ‘nationality unknown’

I have written before about the impact of the Dutch failure to set up a statelessness determination procedure (SDP).  Instead, the Dutch authorities resort to the label of ‘nationality unknown’ without considering whether an individual is  stateless.  The Dutch government gives an individual this label for a variety of reasons.  Most commonly it applies to undocumented refugees or persons affected by boundary changes to their home state.  The label is also applied to stateless persons unable to meet the high standard of proof to register as stateless in the Netherlands, as has happened in this case.  Around 80,000 people are registered as ‘nationality unknown’ in the Netherlands.

As the Committee int this decision points out, the Netherlands is party to the 1954 Statelessness Convention.  Although the Convention does not specify that states must have an SDP, state parties are encouraged to create an SDP under their domestic legislation to ensure that the state can accurately determine who is stateless.  You can see more about the positive impact of having an SDP in my previous blogs, here and here.

The Netherlands did consider introducing an SDP in 2018 ⁶.  However, it does not appear that the proposal was ever voted into law.  In any event, the procedure, as drafted, had many shortcomings.  One key issue was that an individual determined to be stateless under the procedure would not receive a residence permit or be issued with identity documents.  Without a residence permit or a valid state issued identity document, a stateless individual has limited or no access to basic services such as healthcare, or education.  Even with the SDP in place, the protection that the Netherlands offers a stateless person falls short of the requirements placed on the state under the 1954 Convention.

 

Decision of the Committee in Zhao

The Committee found that the complaint amounted to a violation of Zhao’s rights under article 24 (3) ICCPR.  The failure to provide an effective remedy also amounts to a violation under article 24 (3) read in conjunction with article 2 (3) ICCPR.  The Committee made four findings as to the obligations of the state.

In this instance an effective remedy means two things. One, the state should provide adequate compensation as reparation for the rights violated.  And two, it should review the decisions made on Zhao’s application to be registered as stateless and on his application for citizenship.  Aside from considering the applications, the state ought to also look at granting him a residence permit.

The third finding has wider application.  The authorities must take all necessary steps to avoid violations in the future.  In the case of children, the use of ‘nationality unknown’ as a status must be replaced as soon as possible with a determination on  statelessness.  The decision of the Committee is a strong endorsement of the statelessness determination procedure as a way to give effect to rights under articles 2 and 24 ICCPR, and under articles 1 and 4 of the 1961 Statelessness Convention, which place obligations on the state to grant nationality to stateless children born within its territory.

Finally, the state should review its citizenship legislation.  The Committee noted that Article 24 ICCPR does not require state parties to give their nationality to every child born on their territory.  State are, however, obliged to adopt the necessary measures to ensure that every child has a nationality when he or she is born.  State legislation must be in compliance with the rights to a nationality and protection for children and minors in Article 24 ICCPR.

 

Will the decision of the Committee have the desired effect?

The decision of the committee endorses the use of the statelessness determination procedure as a clear way for states to ensure individuals can access rights guaranteed by both the Statelessness Conventions and the ICCPR.  The Dutch authorities are aware that this procedure needs to be in place, having started the process of legislating for it several years ago. Yet the flaws in the original proposal, and the fact that there has been no progress since 2018, suggest an ongoing reluctance to engage with the need to identify those who are stateless and offer the protections due to them under international law.

The Netherlands is not obliged to follow the decision of the Committee and the decision is not binding on the state.  But perhaps with this endorsement of the importance of introducing an SDP in the Netherlands, we are closer to the day when the Netherlands can no longer avoid its duty to protect its stateless population.