PROTECTION OF STATELESS

CHILDREN IN ASEAN UNDER

INTERNATIONAL HUMAN
RIGHTS LAW
A BACHELOR DEGREE THESIS

Luciana Sari Maulida

(13410064)
 TABLE OF CONTENT
CHAPTER I CHAPTER II

THE THEORY OF
STUDY BACKGROUND AND STATELESSNESS AND RIGHT
RESEARCH METHOD TO NATIONALITY FOR
CHILDREN

CHAPTER III CHAPTER IV

APPLICATION OF
INTERNATIONAL HUMAN CONCLUSION AND
RIGHTS LAW TOWARDS THE RECOMMENDATIONS
PROTECTION OF STATELESS
CHILDREN IN ASEAN
 CHAPTER I
STUDY BACKGROUND AND
RESEARCH METHOD
1.4 million

stateless people
±938.000 ±443.862
stateless
stateless
±20.524 ±11.689 ±11.000
stateless
±7.138
stateless
stateless stateless
Innumerable and dangerous
consequences for children
 Right to Right to
Education Healthcare
 Human Children
Trafficking Recruitment

Sexual Early
Exploitation Marriage
 Article 15 of UDHR

Article 24 (3) of ICCPR

Right to a Article 7 of CRC

Nationality Article 18 of ADHR

CRSSP (1954)

CRS (1961)
Right to a Right to
Nationality = have Rights
Problem Formulation & Objectives
1 2
What are the gaps of
nationality law How does the
between protection of
international law stateless children in
and ASEAN Member ASEAN under
States domestic laws International Human
causing stateless Rights Law?
children in ASEAN?
 Research Approach

Comparative
approach by
Statutory
comparing several
approach by
domestic laws and
analyzing the
identifying each
legal instruments
similarities and
differences
 CHAPTER II
THE THEORY OF
STATELESSNESS AND RIGHT TO
NATIONALITY FOR CHILDREN
Statelessness Under International Human Rights Law

Someone who does not have

the legal bond of nationality
with any state.*

*definition of statelessness
 Intenational Instrument Regarding Statelessness

The United Nations The United Nations

1954 Convention 1961 Convention on
Relating the Status the Reduction of
of Stateless Persons Statelessness
 Cause of Statelessness
a b
Conflicts of or
State
Discriminatiory
succession
Nationality Laws

Administrative The inheritance of

barriers and lack statelessness by
of documentation new-borns
c d
Childhood Statelessness and Children’s Right to a Nationality

Every

10m
A Stateless Child
Born in the World
 Legal Instrument Regarding the children’s
right to a nationality

“The child shall be “States Parties undertake

registered immediately to respect the right of the
after birth and shall have child to preserve his or her
the right from birth to a identity, including
name, the right to acquire a nationality, name and
nationality and, as far as family relations as
possible, the right to know recognized by law without
and be cared for by his or unlawful interference.”
her parents.”
(Art. 7 CRC) (Art. 8 CRC)
 Other International Instrument Related with
children’s right to a nationality

“Everyone has the right to a nationality.”

(Art. 15 UDHR)

“Every child has the right to acquire a nationality.”

(Art. 24 (3) ICCPR)

CEDAW, CRMW, CRPD

Other Instruments
Islamic Perspective on Right to a Nationality

(Qur’an, 49:13)

"O men! Behold, We have created you

all out of a male and a female, and
have made you into nations and
tribes, so that you might come to
know one another."
 OIC Covenant on the Rights of the Child
(OICRC)

“A child shall, from birth, have right to a good

name, to be registered with authorities
concerned, to have his nationality determined
and to know his parents, all his relatives and
foster mother.”
(Art. 7 (1) OICRC)
 OIC Covenant on the Rights of the Child
(OICRC)

“States Parties to the Covenant shall safeguard the elements

of the child’s identity, including his name, nationality, and
family relations in accordance with their domestic laws and
shall make every effort to resolve the issue of statelessness
for any child born on their territories or to any of their
citizens outside their territory.”
(Art. 7 (2) OICRC)
Granting nationality for a child

Abuse, Torture, Inhumane Treatment

Granting nationality for a child

"And whoever saves a life it is as though

he had saved the lives of all
mankind."
(Qur’an, 5:32)
 CHAPTER III
APPLICATION OF
INTERNATIONAL HUMAN RIGHTS
LAW TOWARDS THE PROTECTION
OF STATELESS CHILDREN IN
ASEAN
 Gaps between International Human Rights Law and
ASEAN Member States’ Domestic Laws

UDHR

ICCPR CRS CRSSP CRC

Gaps between International Human Rights Law and
ASEAN Member States’ Domestic Laws

ICCPR CRC

CRSSP CRS
 States ICCPR CRC CRSSP CRS

Brunei
27 Dec 1995
Darussalam
Cambodia 26 May 1992 15 Oct 1992

Indonesia 23 Feb 2006 05 Sep 1990

Lao 25 Sep 2009 08 May 1991

Malaysia 17 Feb 1995

Myanmar 15 Jul 1991

Philippines 23 Oct 1986 21 Aug 1990 22 Sep 2011

Singapore 05 Oct 1995

Thailand 29 Oct 1996 27 Mar 1992

Viet Nam 24 Sep 1982 28 Feb 1990

 Elements That Recommended to be Integrated and
Regulated in Each Domestic Law
1 2
The inclusion of stateless Nationality grant by birth and
definition application

3 4
Non-discrimination principle based Allowing mother to pass her
on race, gender and religion nationality to her child

5 Allowing a child to get nationality even 6 Nationality grant for foundling or child
if only of his parents is a national of found within the State territory with
certain State unknown identity
7
and facilitate naturalization.
 The inclusion of stateless definition

Only Viet Nam and Lao (under the term of ‘Apatrid’)

aware and recognize the existence of stateless. This
recognition help the Government to take a necessary
step for the treatment of the stateless child and to
make sure they were treated and protected equally as
citizens.
 Nationality grant by birth and application

All ASEAN Member States granting nationality for a

child by birth or through application. The
implementation of this element may vary because
most of the Member States applied the principle of
jus sanguinis, with only Cambodia, Indonesia,
Singapore and Thailand combined both the principle
of jus sanguinis and jus soli.
 Non-discrimination principle based on race, gender
and religion
3

In Brunei Darussalam, Malaysia, and Myanmar,

discriminatory law still persist. Brunei Darussalam and
Malaysia created a strict gender discrimination.
Whereas Myanmar and also Brunei Darussalam only
several ethnics are recognized as their nationals. This
discriminatory laws is one of the biggest contributions
to the statelessness in the region.
 Allowing mother to pass her nationality to
her child
4

All Member States allowing the mother to transfer

her nationality, Brunei Darussalam, Malaysia, and
Myanmar didn’t allow it.
 Allowing a child to get nationality even if only of
his parents is a national of certain State
5

While all Member States granting the nationality from

a child born abroad with at least one parent has the
status as national, Brunei Darussalam, Malaysia, and
Myanmar only granting the nationality if the father is
a national.
 Nationality Grant for foundling or child found
within the State territory with unknown identity
6

Only Cambodia, Indonesia, Lao, Malaysia, and Viet

Nam granting citizenship for the foundling, while the
others didn’t have any regulation to protect the
unknown child in their territory.
 and facilitate naturalization.

All Member States facilitate the process of

naturalization.
The Protection of Stateless Children in ASEAN

Definition for stateless persons in their

nationality laws
The Protection of Stateless Children in ASEAN

Provides a best practice in birth

registration campaigning
The Protection of Stateless Children in ASEAN

2005 National Strategy on Administration

of Legal Status and Rights of Persons and
2008 changes in the Nationality Law.
The Protection of Stateless Children in ASEAN

Governments of Indonesia and the

Philippines shows a good example of
how States can work together
The Protection of Stateless Children in ASEAN

Civil society is playing a crucial role in

engaging the affected community and
resolving documentation issues.
 Efforts to Eradicate Statelessness
a b
Accession or ratification Empowering
of UN Stateless regional
Conventions by ASEAN human rights
Member States bodies

Eliminating gender
Emphasizing birth and racial
registration discriminatory
nationality laws
c d
 Accession or ratification of UN Stateless
Conventions by ASEAN Member States
a

Member states should voluntarily and collectively sign the

CRSSP and the CRS, so that it would guarantee that stateless
child are treated in accordance with international standards.
The accession to the two Conventions would provide the
clearest framework for adapting national laws and policies to
identifying, protecting, and eradicating statelessness within
ASEAN.
 Empowering regional human rights bodies

ASEAN has the AICHR and ACWC which are both mandated
obligation to play a leading role in the elimination of
statelessness in the region. Empowering regional human rights
bodies to take a more active role in the identification and
elimination of statelessness includes encouraging and working
with States to withdraw reservations and amend laws that
violate the right to nationality and birth Registration.
 Emphasizing birth registration

Registration at birth is of paramount importance. In order to

address financial and administrative obstacles, a regional
funding mechanism could be piloted to offset the costs of birth
registration. A period should be designated when birth
registration is free, and after that waivers should be made
available for the extremely poor.
 Eliminating gender and racial discriminatory
nationality laws
d

A robust regional investigation into gender-based

discrimination in nationality laws is a fundamental component
of addressing statelessness. A widespread gender-based and
racial assessment of equal access to nationality should be
conducted throughout ASEAN. Member states should work
with Myanmar, Malaysia and Brunei to amend their
Nationality Laws to abolish racial and gender discrimination.
 CHAPTER IV
CONCLUSION AND
RECOMMENDATIONS
 CONCLUSION
1 The gaps of nationality law between international law and
ASEAN member states domestic law causing stateless
children in ASEAN

a b c d
Lack of Only four
The existence Only half of
stateless member states
of race and ASEAN Member
definition combine jus soli
gender States grant
inclusion and jus
discriminatory citizenship for
within sanguinis
laws foundling
domestic laws principle
 CONCLUSION
2
The protection of stateless children in ASEAN
under International Human Rights Law

a b c d e
Providing Changing the
Birth State Civil
stateless Nationality
registration cooperation organization
definition law to be
campaigning (Phillipines and inclusion
(Viet Nam more inclusive
(Cambodia) Indonesia) (Malaysia)
and Lao PDR) (Thailand)
 RECOMMEDATIONS
1 2
Accession or ratification Empowering
of UN Stateless regional
Conventions by ASEAN human rights
Member States bodies

Eliminating gender
Emphasizing birth and racial
registration discriminatory
nationality laws
3 4
THANK YOU