African Union’s new Protocol on statelessness: a beacon of hope for children’s rights

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In a world composed of hundreds of sovereign states, statelessness remains an incongruency which profoundly affects the lives of millions who find themselves deprived of the fundamental right to nationality. 

For the layperson, nationality may embody a sense of belonging rooted in shared community, culture, or history. However, in legal terms, nationality refers to a genuine and effective link between an individual and a state, which creates reciprocal obligations. For those who are deemed stateless, this connection is absent. Leaving them without a recognised national identity under the laws of any jurisdiction.

Those who face statelessness face countless challenges, with children constituting a particularly vulnerable group within this population. The consequences of statelessness for children are profound and far-reaching. The bureaucratic invisibility of statelessness exposes them to heightened risks of exploitation and abuse, including, among other things, sexual exploitation and forced hazardous labour as a result of trafficking. Moreover, as they effectively live in legal limbo their fundamental rights, such as access to education, healthcare, and social services may be systematically undermined. Denied the opportunity to pursue their aspirations and confronted with a lifetime of discrimination, stateless children navigate a precarious existence, underscoring an urgent need for effective measures to address this pressing issue.

The African Union’s response to statelessness  

In response to the issue of statelessness on the continent, the African Union (AU), at the 37th Ordinary Session of the AU Assembly, adopted a new Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness (the Protocol). The Protocol has been lauded as a major step forward for the AU in protecting and fulfilling the right to nationality in the region, addressing for the first time the lack of a provision for the right to nationality within the African Charter.

African specific provisions

Importantly, the Protocol acknowledges Africa’s colonial history and its ramifications on statelessness on the continent. Setting it apart from the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, both of which do not address the uniquely African contexts of statelessness.

For example, the protocol includes provisions specifically designed to cater to the needs of nomadic and cross-border populations affected by the arbitrary colonial borders. Article 8 acknowledges the distinct circumstances under which statelessness arises in these communities and attempts to provide guidance to African States on the eradication of statelessness among such groups through all appropriate legislative and other measures. Up to this point, the only other international instrument addressing these issues is the Recommendation of the Council of Europe Committee of Ministers to Member States on Stateless Nomads and Nomads of Undetermined Nationality, adopted on 22 February 1983 (R(83)1).

“The Protocol provides a beacon of hope for a future where every African child is acknowledged and where their nationality and a sense of belonging are ensured.”

Child centred provisions

The acquisition of nationality by children stands as a crucial step in the eradication of statelessness, a principle deeply embedded in the Protocol. Article 3(2)(d) underscores the best interests of the child to be the primary consideration in all decisions concerning their nationality.

Moreover, Article 10 of the Protocol specifically addresses the protection of children's nationality rights. This article draws directly from both the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC).

For instance, Article 10(1) reflects aspects of both Article 7(1) of the CRC and Article 6(1) and (2) of the ACRWC. It highlights the necessity of attributing nationality to children at birth whenever possible and ensuring prompt registration of their birth to establish evidence of a child’s claim to nationality.

Article 10(2) prohibits discrimination based on the marital status of the child’s parents at birth, echoing the non-discrimination principle outlined in Article 2 of the CRC and Article 3 of the ACRWC. Finally, Article 10(3) aligns with the child’s right to participation as articulated in Article 12 of the CRC and Article 7 of the ACRWC, guaranteeing that children's opinions are heard, respected, and considered in any administrative decisions or proceedings related to their nationality rights.

Provisions addressing generational statelessness

Notably, Article 5 introduces various innovative mechanisms tailored to protect children's rights, particularly within an African context. In particular, it introduces mechanisms which aim to proactively prevent the perpetuation of generational statelessness, that is, statelessness which is inherited from parent to child.

For instance, Article 5 incorporates inter alia the principle of double jus soli, ensuring automatic nationality attribution based on birth in the territory of one parent. This principle is deemed one of the most effective methods within an African context to diminish the long-term presence of stateless individuals on the continent. Furthermore, the article clarifies that protection against statelessness must be guaranteed in all circumstances where a child fails to acquire nationality from either parent and is consequently at risk of statelessness. In other words, in cases where the nationality of the parents is uncertain and the child faces the threat of statelessness, the child will acquire the nationality of the state where they were born.

Ratification, domestication, and implementation

The Protocol provides a beacon of hope for a future where every African child is acknowledged and where their nationality and a sense of belonging are ensured. By mitigating the bureaucratic invisibility of statelessness, this Protocol ensures that African children have access to their fundamental rights, including healthcare, education, and social services, as well as protection from exploitation and abuse.

The adoption of this treaty is a crucial first step by AU states in the protection of these rights. With its innovative mechanisms tailored to address the unique challenges faced by African populations, the Protocol not only offers solutions but also represents a crucial move towards building a more inclusive and just African society for generations to come. However, the treaty process is not yet over. The Protocol requires that at least 15 AU states sign and ratify the text before it becomes enforceable, and the provisions binding.

Nevertheless, the initial adoption of this protocol is a promising indication of the growing political will to address the issue of statelessness on the continent. The hope is now that this momentum continues and that states will ratify, domesticate and implement the Protocol and all its provisions without delay.