The Lack of Universal Birth Registration: Stateless Children

By Luzdary Hammad

Undergraduate Thesis San Francisco State University Advisor: Professor Skonieczny

Fall 2011

 

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Abstract

The lack of universal birth registration is an international issue affecting an estimated 48 million children a year, who are not registered at birth. These unregistered children are stateless, defined as people who are not considered a citizen or national by any state. Even though birth registration is mandatory by international and domestic law, many underdeveloped countries have failed to comply. This paper argues that underdeveloped countries have low birth registration rates due to their lack of social development. This paper uses a human rights perspective to explain that citizenship is the basic right; the right to give paths to all other rights. Three case studies, Bangladesh, Kenya and Liberia are used to show the factors causing statelessness and what international organizations have proposed as solutions. An analysis of all three case studies is examined which connects the lack of birth registration to the lack of social development, since low birth registration rates are mainly found in rural areas.

 

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Table of Contents I. Introduction Page 3

II. Literature Review

i. Social Development Theory Page 6 ii. Human Rights Page 10

iii. Human Rights of the Stateless Page 11 iv. Children’s Rights Page 13 v. Legal Empowerment Page 15

III. Methodology Page 17 IV. International Law Page 18

i. Nationality Page 23 ii. International Child Law Page 24

V. Case Studies

i. Bangladesh Page 27 a. Factors Causing Statelessness Page 28 b. Proposed Solutions by International Page 30

Organizations ii. Kenya Page 33

a. Factors Causing Statelessness Page 35 b. Proposed Solutions by International Page 36

Organizations iii. Liberia Page 37

a. Factors Causing Statelessness Page 38 b. Proposed Solutions by International Page 39

Organizations

VI. Analysis of Case Studies Page 40 VII. Conclusion Page 43 VIII. Bibliography Page 46

 

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The lack of Universal Birth Registration: Stateless Children

“Statelessness is not merely a legal problem, it is a human problem. Failure to acquire status under the law can have a negative impact on many important elements of life, including the right to vote, to own property, to have health care, to send one's children to school, to work, and to travel to and from one's country of residence” (Batchelor, 1998, 159).

Many people might feel invisible, but people without a birth certificate are literally invisible to

the state. A birth certificate is the simplest way to integrate a child into society. By integrating the

child, the child is given a name, a nationality and rights. Without this integration the child is

practically invisible to society and has no identity, no nationality and absolutely no rights (UNICEF,

2005, 1). The legal term for people without a birth certificate is stateless, defined as people who are

not considered a citizen or national by any state (United Nations, 1954, 1).

Not registering births is a human rights violation, which is stated in international law. There

is a long list of treaties that specifically include articles that emphasize the necessity for birth

registrations, but the two main treaties are The Universal Declaration of Human Rights and The

Convention of the Rights of the Child. The Universal Declaration of Human Rights, Article 15

clearly states, “everyone has the right to a nationality” and “no one shall be arbitrarily deprived of his

nationality nor denied the right to change his nationality” (United Nations, 1948, 1). The

Convention on the Rights of the Child, Article 7 also clearly states “the child shall be registered

immediately after birth and shall have the right from birth to a name, the right to acquire a

nationality and as far as possible, the right to know and be cared for by his or her parents.” In

addition, the article continues by saying that all governments need to ensure that births are being

registered to guarantee the child’s rights or else the child would be stateless (United Nations, 1989,

1).

 

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The consequences of not registering births are endless and devastating. Without a birth

certificate the child has no identity; the child does not legally have a name, a birth date, or proof of

who his or her parents are. Without a birth certificate, the child cannot do any basic and essential

steps needed to be a part of society. For example, the child cannot go to school, cannot get married,

and cannot receive any help from the government or obtain health insurance. Since the child has no

identity, no rights and no possibility for a future within the context of the law, the child may be

subjected to human trafficking, the sex trade, child labor, and getting picked up by gangs or the mafia

(Innocenti Digest, 2002, 5). Also, without a birth certificate the child will have no death certificate,

verifying that the child did not legally exist.

Even though birth registration is mandatory by international law, there does not exist a

“single United Nations agency responsible for ensuring that births and deaths are registered, so it has

fallen between the cracks. That is why we have failed to establish, support, and sustain civil

registration systems over the past 30 years in the developing world” (WHO, 2007, 1). Due to the

seriousness of the situation, my research question is how can international awareness and efforts help

underdeveloped countries achieve higher birth registration rates to protect the rights of the child?

International awareness includes and is not limited to campaigns, conferences and international law.

International efforts are mainly research, proposed solutions and actions taken by international and

non-governmental organizations.

The lack of registering births is an international issue affecting an estimated 48 million

children annually, which is over 40 per cent of all estimated births globally (Africa News, 2003, 1).

The countries with the lowest birth registration rates are found in South Asia and Sub-Saharan Africa

(Dow, 1998, 11). Asia and Africa are enormous continents where many countries are

 

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underdeveloped. This paper will focus on these two continents to show why underdeveloped

countries have the lowest birth registration rates by using Bangladesh, Kenya and Liberia as case

studies. This paper will argue that governments can increase their birth registration rates by changing

or implementing new policies, so children will no longer be abused and exploited with no means of

an escape due to their lack of citizenship.

In this paper, I provide a theoretical background on social development, human rights,

children’s rights and legal empowerment. In addition, I specify the theoretical lens I use throughout

my paper, which consists of social development and human rights theory. Next, my paper immerses

into international law and discusses concepts and treaties relating to the stateless. Following are my

cases studies on Bangladesh, Kenya and Liberia, where factors causing statelessness and proposed

solutions by international organizations are analyzed. Finally, my conclusion gives a summary of every

section of my paper and explains how I answered my research question.

Literature Review:

Social Development Theory

Since the lowest birth registration rates are found in underdeveloped countries, I chose social

development theory to help understand why this might be the case. Development is defined as “the

expansion of freedom as the primary end and principal means of development. Development involves

the expansion of human capabilities and the enrichment of human lives” (Greig, Hulme, Turner,

2007, 22). Social development is a theory that works to ensure “that the poor and vulnerable groups

either benefit directly from development interventions- or where interventions are not targeted

specifically at the poor- are not disadvantaged and made poorer as a result of their engagement with

development process” (Green, 2002, 53).

 

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Amertya Sen’s book Development as Freedom demonstrates how development leads to freedom.

He defines freedom as “the capability to develop one’s own potential, unrestrained by circumstances

outside one’s control” (Navarro, 2002, 463). Amertya Sen recognizes that economic development is

crucial but by concentrating solemnly on the growth of a countries’ GNP, social development is

ignored. One of his main points is to dismantle the prevalent understanding of development that the

main financial institutions have, such as the World Bank and International Monetary Fund. The

prevalent understanding of development is the belief that everything being produced at the top level

by the wealthy minority will trickle down to the poor majority on the lower level. This trickling down

theory is meant to affect everybody’s life, including the poor, for the better and will allow for

everybody to develop economically. This belief is the reason financial institutions focus heavily on

countries’ GNP. But as many researchers have found, the trickling down effect does not actually

work and therefore a country’s GNP does not accurately portray a country’s population’s

development. For example, researcher Vincente Navarro investigated the trickle down theory in Brazil

in the 1960s when Brazil was rapidly growing economically (Navarro, 2002, 462). His research proved

the trickle down theory was false, since the Brazilian economy was booming yet the Brazilian people

were still suffering with a dramatic increase in infant mortality. He acknowledged that the wealthy

minority were succeeding and their wealth was quickly increasing, but none of that wealth trickled

down. Brazil’s GNP grew dramatically solely due to the wealthy minority, completely ignoring the

poor majority. Vincente Navarro’s research reinforced Amertya Sen’s points that development should

not be solely based on economic growth and that economic development does not stimulate social

development.

 

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Amertya Sen is not the first economist to doubt the prevalent understanding of development.

In the 1970s economist Peter Donaldson also critiqued this understanding by stating that it was

“nonsense to equate growth with progress” (Donaldson, 1973, 229). Clive Hamilton, the author of

Growth Fetish, added to the discussion that there is too much “evidence that casts serious doubt on

the dual assumption that more economic growth improves social well-being and that more income

improves individual well-being” (Hamilton, 2003, 23). A country’s development is too complex to be

measured by simple formulas, such as GDP or GNI (Greig, Hulme, Turner, 2007, 37). Since the

prevalent understanding of development is more recently commonly rejected, the understanding of

development is changing and as a result new tools are being used to monitor development. The UN

Development Programme established the Human Development Index (HDI) in 1990. HDI is

completely different than GDP and GNI because it tries to put a human face to development by

taking in a wide range of factors such as education, government participation and happiness.

Amertya Sen focuses more on “individual human development rather than national economic

development” (Greig, Hulme, Turner, 2007, 21). Amertya Sen writes that in order to have freedom,

people require a combination of different elements such as social, economic, political and civil rights.

These elements are used as a foundation for the five categories of freedom: political freedom,

economic facilities, social opportunities, transparent guarantees and protective security. Political

freedom is defined as the right to vote, have a choice of different political parties, uncensored press

and freedom of political expression (Sen, 1999, 38). Economic facilities are defined as “the ability to

have, to own and to use economic resources for the purpose of consumption, production or

exchange” (Navarro, 2002, 463). He also includes the opportunity to be involved in the market by

buying or selling labor. Social opportunities include education, health care and other services related

 

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to people’s well-being and growth, in order for them to participate economically and politically.

Transparency guarantees refers to transparency in economic and political institutions to prevent

corruption. Protective security includes safety to prevent from starvation, violence, untimely deaths

and also prevention from being excluded from society (Sen, 1999, 40). Amertya Sen also writes about

elements of what he calls “unfreedom” such as poverty and famine, which need to be eliminated

(Sen, 1999, 15). Increasing the registration of births would be the first and most important step in

achieving freedom since without it there is no possibility for economic or social development.

Edgar Owens, another author who discusses social development, mentions in The Future of

Freedom in the developing World that after World War II Latin America was economically behind, so the

developed countries such as the United States decided to help by giving foreign aid. This foreign aid

went directly to industrializing Latin American countries with the belief that all it took to develop a

country and also get rid of poverty was to industrialize it (Owens, 1987, 3). This belief is partially to

blame for social issues such as the lack of birth registrations, since governments tend to choose to

develop economically rather than socially. What governments fail to understand is if they develop

socially, they will simultaneously develop economically, as Amertya Sen mentioned. But developing

economically does not guarantee social development. Edgar Owens also stated that the minority of

the population has access to “resources, public organization and legal protection” (Owens, 1987, 5).

The few privileged have the opportunity to take advantage of the resources they are given, but for the

“hundreds of millions of villagers and slum dwellers who constitute the bulk of the population in

developing countries-access is either limited or lacking altogether” (Owens, 1987, 5).

 

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Human Rights

Amertya Sen discusses human rights and asks the question “how can human rights have any

real status except through entitlements that are sanctioned by the state, as the ultimate legal

authority?” (Sen, 1999, 228) This question can be directly connected to the issue of the lack of birth

registrations. Human rights should be provided to all human beings since they are humans, but that

isn’t the case due to our nation state legal system. Humans are only entitled to human rights if they

have a legal personality and are recognized by a state. Children whose births were not registered were

obviously born as humans and were born in a state, but are still considered stateless and are invisible

to the state they were born in. Our legal system expects for every parent to register their children’s

births but when parents fail to do so, the children are punished by our legal system. Amertya Sen

believes that human rights should be “a set of ethical claims, which must not be identified with

legislated legal rights” (Sen, 1999, 228). Hannah Arendt, author of The Origins of Totalitarianism,

agrees with Amertya Sen and goes even further by blaming our legal system, since it relies on the state

as “the principle guarantor of human rights” (Arendt, 1973, 268).

Amertya Sen also discusses individual and state responsibility and who should be held

responsible. He states that people’s ability to carry out their responsibilities is contingent on their

“personal, social and environmental circumstances” (Sen, 1999, 284). If their personal, social and

environmental circumstances are inadequate to permit them to carry out their responsibilities, then

they cannot be held accountable for not accomplishing their responsibilities. The state must ensure

adequate social and environmental circumstances to citizens in order for them to carry out their

responsibilities (Sen, 1999, 284). The lack of birth registrations can be provided as an example for

Amertya Sen’s case. A very common factor for not registering births is because the parents cannot

 

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afford to give birth in a hospital, so they give birth at home with a midwife. Midwives are not legally

trained to register births, so the birth goes unregistered (International Council of Nurses, 2007, 1).

Even though it is the parents’ responsibility to register the birth, the state failed in their responsibility

of providing economic assistance to families in need or train midwives to register births, so parents do

not need to go to a hospital.

Human Rights of the Stateless

Hannah Arendt wrote about the effects of being a stateless person,

“The calamity of the rightless is not that they are deprived of life, liberty, and the pursuit of happiness, or of equality before the law and freedom of opinion – formulas which were designed to solve problems within given communities – but that they no longer belong to any community whatsoever. Their plight is not that they are not equal before the law, but that no law exists for them” (Arendt, 295, 1).

She agrees that the most basic right is the right to have rights, but she acknowledges the fact that

humans can only have rights if they belong to a certain community because only their community

can provide them rights (Berstein, 2005, 56). She believes that the worst part of being stateless is

not belonging to a community. She states that by not belonging to a community, a person loses a

part of their humanity because they cannot share their lives in a shared world. By not belonging to

a community, which results in not having any rights, a person is left incapable of performing an act

because they are excluded from societal life (Berstein, 2005, 55). Hannah Arendt believes that the

creation of nation states is to blame for the situation of refugees, minorities, displaced and stateless

people because they are in due to the practice of massive denaturalization against unwanted

minorities. She explains that in a state centric international system “one’s legal status is dependent

upon protection by the highest authority that controls the territory upon which one resides and

issues the papers to which one is entitled” (Benhabib, 2004, 55).

 

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To understand why Hannah Arendt has such strong claims on why statelessness is an

international issue and a violation of human rights, we must study the importance of citizenship.

Citizenship is commonly known as the basic right; the right that opens the path for all other

rights. Citizenship is acknowledged as a right in itself, a privilege that not all human beings

possess, which is the case for stateless people. They are denied their basic right as a human being in

the nation state system. Due to the nation state system, only the state can provide people with

citizenship and it is entirely up to the state to decide whom it wants to claim as its nationals.

Citizenship “provides the legal connection between an individual and a State” (Batchelor, 1998,

160). This connection ensures the state’s protection of the individual and the individual’s

representation in the international community. If an individual has no citizenship, that individual

is invisible to the state thus invisible to the international body. Furthermore, the connection

between an individual and a state is essential because if that connection is lacking, the individual

cannot enjoy or be a part of anything that state created for its citizens. “States only allow for their

own nationals to exercise full civil, political, economic and social rights within their territories”

(Weissbrodt, 2008, 81).

The most important reason why statelessness is a human rights violation is due to the fact

that citizenship is the means to acquire rights, instead of being human. Even though the state is

responsible for providing human rights, being human should be the only requirement to acquiring

those rights. The state should provide rights to all humans whether they have citizenship or not

(Donnelly, 2003, 10, 159).

Michael Walzer, author of Spheres of Justice, has a different perspective on rights. He

believes that the state should be responsible for every person living in that state. Citizen or not, if a

 

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person is living in a country that person must abide by that countries’ law and so that person’s

voice should influence that countries’ law. Michael Walzer states that once a person lives in or has

been admitted to and works in a country then that country should be responsible for them. He

firmly believes in the “moral equality of all humans while protecting the right of communities to

determine their membership composition” (Belton, 2011, 63). He does not believe that there is a

right to nationality, as that would invade the communities’ right of self-determination. He

emphasizes the importance of self-determination as the primary human right instead of citizenship.

He also mentions that the state owes its inhabitants. Once again he does not use the term

citizenship. Michael Walzer replaces the term citizenship with the term inhabitant, two words with

completely different meanings, yet he believes the word inhabitant should legally replace the word

citizenship. His argument for replacing the word citizenship is not only because he believes the

philosophy behind citizenship invades people’s right to self determination but also because his

attention is more on the right of place. He believes the right of place is much stronger than

citizenship. Stateless people are a great example, as they were born in a country but their births

were never registered, yet they have lived their entire life in that country. A stateless persons’ right

of place is much greater than someone who was not born in the country but obtained citizenship

because he or she married a national (Walzer, 1983,1).

Children’s Rights

Since this paper is focused specifically on stateless children, children’s rights must also be

understood. There are two fundamental theories that have emerged in the discussion of children’s

rights: the choice theory of rights and the interest theory of rights. The choice theory of rights

believes that a person who has rights must have the choice of how and when to use their rights.

 

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Theorists argue that children are too young to truly make decisions, so they cannot be given rights

since they wouldn’t know how or when to use them. Children are viewed as being incompetent to

exercise their rights in all situations, so they cannot be considered rights-holders. This theory is

highly criticized, “the assertion that children, who are too young and incompetent to claim rights,

therefore has no rights, has an unattractive logic” (Fortin, 2009, 12). It is considered an

unattractive logic because if we take this same logic and apply it to mentally disabled people, we

will conclude that mentally disable people shouldn’t be given rights because they are incompetent

of making sound decisions independently. This theory is also criticized for relying solely on parents

to take care of their children, even though it has been proven in various research on child abuse

that “it is frequently the case that the greatest threat to a child’s emotional, physical and sexual

integrity come from parents and other close family members and friends” (Buck, 2011, 25).

The interest theory of rights believes that rights should be given to children based on

their interest to be protected. This theory argues, if society acknowledges the fact that children are

in need of care and protection then there should be a legal foundation to protect and care for

them. The logic supporting this theory is “from the identification of interests there should emerge

a collection of moral rights and some of these will be transformed into legal rights” (Buck, 2011,

26). The weakness of the interest theory is that it does not identify which moral rights should be

transformed into legal rights. John Eekalar attempts to strengthen the interest theory by

categorizing the moral rights that should be transformed into legal rights. He categorizes three

children’s interests: basic, development and autonomy. Children’s basic interest includes their

need for physical, emotional and intellectual care. Children’s development interest refers to their

 

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access to resources that will allow them to develop properly and efficiently. Children’s autonomy

interest relies on their freedom to make decisions relating to their lives.

This paper will use the interest theory of rights as the theoretical lens on children’s rights,

since it believes that children should be considered rights-holders. The choice theory of rights is

partially responsible for the issue of statelessness since children are not considered to be

competent rights-holders, so they are deprived of rights. Also the choice theory relies on parents to

take care of their children but in the case of stateless children, their parents failed to register them,

which resulted in the child having to pay the consequences for their parents’ irresponsibility.

Legal Empowerment

In addition to human rights, a fairly newer concept has emerged in the international

community, known as legal empowerment. Legal empowerment is defined as “a process of systemic

change through which the poor and excluded become able to use the law, the legal system, and

legal services to protect and advance their rights and interests as citizens and economic actors”

(CLEP, 2008, 1). The concept of legal empowerment incorporates both human rights and

development theory by claiming that by ensuring human rights, which mainly rely on the law, a

country’s economic and social growth will expand by including additional members of the

population as contributors to the country’s economy.

Legal empowerment as a concept can be made stronger with the help of human rights

instruments. There are numerous human rights treaties that state the importance of legal

empowerment directly or indirectly. Lawyers and diplomats who support legal empowerment can

use these formerly created and ratified treaties that have become an international norm or are

widely followed to strengthen their case. Legal empowerment tends to be connected to poverty

 

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eradication but it can relate to any group of people that are politically disadvantaged. Politically

disadvantaged can be defined as people who “do not enjoy legal rights or the power to exercise

those rights” (Banik, 2009, 117). Stateless people are the extreme version of politically

disadvantaged, since they are not politically recognized. Due to their lack of recognition and ability

to live as part of a society they tend to be poor so they are an important factor in poverty

eradication.

Legal empowerment does not merely imply a “transfer of resources; it entails the creation

of sound legal and political frameworks which specifically address the needs of poor and

vulnerable groups in the population and hold political and administrative leaders accountable for

policy failures” (Banik, 2009, 118). Legal empowerment is a development strategy that argues that

rich nations are rich due to their wide-range of legal protections relating to all economical and

social aspects. Poor countries, in which the majority of the population is poor, do not have the

luxury of having sufficient legal protection in both economical and social aspects and when they

do have some protection, the poor cannot get access to it. Legal empowerment is essential, not

only to benefit the poor and vulnerable, but also to help countries develop and grow economically

while simultaneously growing socially. The fewer amount of people that are excluded from the

legal market, the more the economy can grow. With more contributors to a countries’ national

income, the richer a country becomes.

To conclude the literature review, the theoretical lens used for this paper is one that

incorporates social development and human rights theory. Legal empowerment is used as a

concept that implies both theories. This theoretical lens will explore the issue of statelessness as a

human rights violation and a social development issue.

 

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Methodology

My research included studying what has been produced on the issue of statelessness thus

far. Most of what has been produced has been reports done by international organizations and

non-governmental organizations such as UNICEF, International Development Law Organization,

Plan International and Refugees International. Since birth registrations are not highly prioritized

by state governments, the responsibility has been carried by these international organizations.

These organizations have all published many reports on the issues of statelessness and continue to

research the issue and provide new data, as well as provided recommendations to state

governments. These reports include factors that cause statelessness, the victims of statelessness, the

locations of the stateless, what can be done to increase birth registrations and the treaties that

emphasize the importance of birth registrations. These reports also provide data on various aspects

of the issue; most importantly what percentage of stateless people are in each country. This data is

very hard to gather since the stateless are invisible to society, thus not being counted in national

census. This data is gathered in one of two ways, either by the government or international

organizations carrying out research to try to improve the situation. There has not been an

internationally accepted method to collecting data on birth registrations, yet UNICEF has created

a “development indicator for its Multiple Indicator Cluster Survey that measures the percentage of

children less that five years of age that were registered at the time of the survey” (Duryea, Olgiati,

Stone, 2006, 7).

To answer my research question, I had to thoroughly research international and domestic

law. Every treaty that mentions the stateless was analyzed and some were used to make the case for

reducing the lack of birth registrations stronger. In addition, the domestic law of my case studies

 

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had to also be analyzed to see the difference in the countries’ policies and which policies need to

be changed or improved. In order to understand which domestic policies needed to be changed or

improved, I had to research the solutions to the lack of birth registrations.

My case studies were picked based on four factors. The first factor was, is the country an

underdeveloped or developing country? I purposely did not want any case studies on developed

countries since my theoretical lens would not apply. Second factor was, does the country have a

stateless population? This factor coincides with the first since most developed countries did not

have or had a very little stateless population. The third factor is, do the countries belong to the two

areas with the lowest birth registration rate, South Asia and Sub-Saharan Africa? So they could be

used to represent the depth of how statelessness is a development issue. Also, I wanted to

understand why the birth registration rate was so low in areas of South Asia and Sub-Saharan

Africa. If proposed solutions could work in such extreme cases then they should work in less

extreme cases such as in the Middle East and South America. Fourth factor was, has there been

research done in that country and is data on birth registrations available? These four factors led me

to my three case studies: Bangladesh, Kenya and Liberia. I will discuss these three countries by

analyzing their laws, the factors that cause statelessness and the proposed solutions by international

organizations. Bangladesh, Kenya and Liberia are all underdeveloped countries in need of social

and economic help. Increasing birth registrations will be a simple way to help their population by

providing the opportunity to improve their lives.

International Law

International law plays an important role on the issue of statelessness, which will be

discussed in this section. First we must understand what international law is and how it is created.

 

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International law serves as an international obligation to which nation states are strongly

encouraged to abide by. “International law is primarily formulated by international agreements,

which create rules that are binding upon the signatories, and customary rules, which are basically

state practices recognized by the community at large as laying down patterns of conduct that have

to be complied with” (Shaw, 2008, 6). To enforce international obligation, the International Court

of Justice was established in 1945. The Statute of the International Court of Justice, article 38(1)

outlines the five ways international obligations are created; treaties, custom, general principles of

law and judicial decisions. Treaties and customary laws are the two main ways international

obligation is created when it comes to the issue of statelessness.

Treaties, also known as conventions, are the most common method to create international

obligation since they are a literal contract between nation states. Treaties are understood to be law

making since they are binding to all parties, which means that every state that signs the treaty

cannot act against the treaty, or violate any articles in the treaty. Once a state signs a treaty, the

treaty becomes law and a part of their domestic legislature. The major problem with treaties is the

right states have to make reservations. States make reservations when they agree with most of the

treaty but disagree or do not want to be held responsible for specific articles, so when a state signs

a treaty it usually includes reservations. These reservations can be dangerous since states can

reduce their responsibility to international obligations.

The first international treaty relating to nationality and attempts to deal with the issue of

statelessness is the 1930 Hague Convention on Certain Questions Relating to the Conflict of

Nationality Laws. It “introduced some limits on the autonomy of states in nationality matters and

one of its aspirations was to ensure that everyone held a nationality” (League of Nations, 1930, 1).

 

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Article 1 asserts, “It is for each State to determine under its own law who are its nationals. This law

shall be recognized by other States in so far as it is consistent with international conventions,

international custom, and the principles of law generally recognized with regard to nationality”

(League of Nations, 1930, 1). Article 1 is still respected today and has been the core principle of

international law regarding citizenship. As revolutionary as the 1930 Hague Convention was, at

that time, it had little impact on the issue of statelessness since it only had twenty signatories and it

was unclear how complex the issue of statelessness really is. The 1930 Hague Convention only

touched the surface on the issue of statelessness, such as the nationality of married women and

children. Yet, the 1930 Hague Convention did open the door to other treaties such as the 1954

Convention Relating to the Statue of Stateless Persons and the 1961 Convention on the

Reduction of Statelessness. These two treaties are the main international treaties, still to the

present day, created to combat the issue of statelessness. The 1954 Convention was the first time a

legal term for people without a nationality was created. Before this convention, there was no term

to call people without a nationality and without a term there could be no legal action taken to help

them. In the 1954 Convention, Article 1 declares “for the purpose of this Convention, the term

"stateless person" means a person who is not considered as a national by any State under the

operation of its law” (United Nations, 1954, 1). Once the term was created, it opened the door for

legal assistance, thus an entire convention was dedicated to helping and protecting the stateless.

The 1954 Convention consists of five chapters: general provisions, judicial status, gainful

employment, welfare and administrative measures. The main purposes of the 1954 Convention is

for stateless people to acquire nationality and for stateless people to be treated like citizens. It also

sought to “regulate and improve the status of stateless persons” (Blitz, Lynch, 2009, 4). It calls on

 

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countries that are parties to the convention to provide stateless people with a nationality and

identification as quickly as possible. Article 27 asserts “the Contracting States shall issue identity

papers to any stateless person in their territory who does not possess a valid travel document”

(United Nations, 1954, 1). Article 32 asserts, “The Contracting States shall as far as possible

facilitate the assimilation and naturalization of stateless persons. They shall in particular make

every effort to expedite naturalization proceedings and to reduce as far as possible the charges and

costs of such proceedings” (United Nations, 1954, 1).

In this convention, two types of stateless people are acknowledged; de jure and de facto.

Stateless people who are considered to be de jure are people who have true claims to being a

national, but have no legal proof, such as an indigenous person who lives in the rural areas of

Mexico. Stateless people who are considered to be de facto are people whose political situation

prevents them from receiving a nationality, such as Palestinians (Southwick, Lynch 2009, 7). This

convention has twenty-three signatories and sixty-eight countries that are party to it.

A few years later, the following convention was presented, the 1961 Convention on the

Reduction of Statelessness. It reinstates solutions from the previous convention, “a contracting

State shall grant its nationality to a person born in its territory who would otherwise be stateless”

but also adding how to avoid statelessness at birth (Blitz, Lynch, 2009, 4). The 1961 Convention

acknowledges the complicated and various ways people can end up stateless and tries to come up

with a solution for many situations by stating what the country’s responsibility are and who has

jurisdiction on the stateless person. For example, Article 1(3) “a child born in wedlock in the

territory of a Contracting State, whose mother has the nationality of that State, shall acquire at

birth that nationality if it otherwise would be stateless” (United Nations, 1961, 1). Another

 

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example, in Article 5(1), “if the law of a Contracting State entails loss of nationality as a

consequence of any change in the personal status of a person such as marriage, termination of

marriage, legitimation, recognition or adoption, such loss shall be conditional upon possession or

acquisition of another nationality” (United Nations, 1961, 1). It also mentions that stateless

people who are de facto should be treated as much as possible as de jure, so they can have a better

chance of receiving a nationality (Southwick, Lynch 2009, 7). This convention has five signatories

and forty countries that are party to it.

International custom is based on the practice and behavior of states. “Such rules develop

almost subconsciously within the group and are maintained by the members of the group by social

pressures and with the aid of various other more tangible implements” (Shaw, 2008, 72).

Customary law is not written; it is an understanding that general practices are accepted as law.

Customary law is divided into two steps: the material fact and opinio juris. The material fact is the

first step based on the actual practice engaged in by states. For an act to be considered customary

law, it is judged based on its duration, consistency, repetition and generality. Opinio juris, the

second step, is the “belief that state activity is legally obligatory” and is the factor which “turns the

usage into a custom and renders it part of the rules of international law” (Shaw, 2008, 84). In

other words, states will act in a certain way because they believe they are required to do so by

international law.

A case can easily be made that the concept of nationality is a customary norm since it is

included in every domestic legislature and has existed since the Roman Empire. The concept of

nationality has a very long duration since the Roman Empire, but more commonly since the

creation of nation states. It has been consistent and repeated since the practice began and can be

 

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considered general since every country has citizens. It also falls under opinion juris, since the right

to a nationality is a part of international and domestic law. Every country has citizens because it is

required by international law and custom. There does not exist a country in the world that decided

to not have citizens and simply have people living in their country with no nationality.

Nationality

“The concept of nationality is important since it determines the benefits to which persons

may be entitled and the obligations which they must perform” (Shaw, 2008, 660). There is no

accepted definition of nationality in international law giving the domestic jurisdiction of states the

complete power to decide who its nationals are, as stated in the 1930 Hague Convention on

Certain Questions Relating to the Conflict of Nationality Laws. The lack of an accepted

definition for nationality shows the limitation of international law since it gives states the freedom

to define nationality on their own terms. Not only are there various definitions for nationality, the

ways individuals can acquire nationality and what nationality provides also vary from state to state.

In international law, there are only two recognized ways for individuals to acquire a

nationality at birth: jure soli meaning law of the soil, and jus sanguinis meaning law of the blood

(Shaw, 2008, 661). To acquire nationality through jure soli, an individual must be born in a state’s

territory. The only requirement to gaining nationality under jure soli is to be born in a country.

Unless someone is born on a plane or on a ship, everyone is born in a country meaning that

everybody should have a nationality, yet there are still millions of people that lack a nationality. Jus

sanguinis is when an individual acquires nationality through the nationality of their parents. It is

based on handing down nationality from one generation to the next through bloodline. Usually

only the nationality of the father can be passed down, since most societies are patriarchal, but in

 

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some cases the mother can also pass down her nationality. If children are born to stateless parents,

the only thing their parents can pass down to them is the status of also being stateless. Nation

states have the freedom to choose which law they want to follow. They can choose to only

recognize the law of the blood or the law of the soil or recognize both.

International Child Law

Since this paper focuses on stateless children, it is essential to look at international child

law. The Declaration in the Rights on the Child in 1924 passed by the League of Nations was not

only the first manuscript to acknowledge children’s rights, but also the first human rights

manuscript to be approved by an international body. This Declaration included “five principles

directed to creating the conditions necessary for children to be protected and to enable them to

develop into citizens who will contribute to their communities” (Buck, 2011, 22). The problem

with the 1924 Declaration was that it represented children as a passive actor rather than an active

actor, meaning that parents have complete control of their children so children were not really

given a say. The 1924 Declaration was revisited and revised by the United Nations and was

transformed into the Declaration of the Rights of the Child of 1959. These two Declarations were

not made to be considered legally binding instead, they were considered to be guidelines countries

should follow when it comes to child welfare. The 1959 Declaration is considered to be the

foundation to the most recent treaty regarding children’s rights, the UN Convention on the Rights

of the Child of 1989. However, even before the most recent convention, the rights of a child

appeared in other conventions, such as the International Covenant on Civil and Political Rights of

1966 (ICCPR). In the ICCPR of 1966, Article 24 states,

“1. Every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of

 

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protection as are required by his status as a minor, on the part of his family, society and the State. 2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality” (United Nations, 1966,1).

Nonetheless, the main treaty regarding the rights of the child is the most recent one, the

1989 UN Convention on the Right of the Child (CRC). The CRC is a very unique treaty for three

specific reasons; the drafting process took eleven years, Non Governmental Organizations played a

great role in creating it and almost every country in the world welcomed it with one hundred and

ninety three signatories. The drafting process by the United Nations started in 1978 when the

Polish submitted a draft of the Convention on the Rights of the Child. It was highly criticized for

highly resembling the 1954 Declaration and it did not add anything new to the Declaration. Due

to the Polish’s inadequate draft, the United Nations Commission on Human Rights (UNCHR)

organized a group to review, revise and expand the Poles’ draft. This group held eleven meetings

from 1979 till 1988 and they finally agreed upon a text in December 1988. The text was then sent

to the General Assembly for approval and was adopted in November 1989. The CRC is highly

influenced by the three main treaties on human rights: the Universal Declaration of Human

Rights, the International Covenant on Civil and Political Rights and the International Covenant

on Economic, Social and Cultural Rights. As stated earlier, Non Governmental Organizations

(NGOs) played a significant role during the drafting process,

“The NGOs’ contributions were in many respects remarkable. It is generally acknowledged in the international community that the NGOs had a direct and indirect impact on the CRC that is without parallel in the history of drafting international instruments” (Cantwell, 1992, 24).

The NGOs involved were directly responsible for thirteen articles included in the Convention and

influenced many other articles. The CRC is by far one of the most popular treaties, only excluding

the United States and Somalia who are not party to it. The CRC includes civil and political rights,

 

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in addition to social, economic and cultural rights. “It is the first, comprehensive, right-based

international treaty specifically constructed to protect and enhance the position of children”

(Buck, 2011, 88). The CRC was a major step in international law since it not only recognizes

children as actors in international law, but also recognizes children as active actors who can obtain

rights and are capable of making decisions. The CRC serves as the primary international

instrument to protect the rights of children by influencing regional and domestic policies.

The CRC also established the Committee on the Rights of the Child (CtRC), which

monitors and examines the progress made by countries in achieving the goals and obligations laid

out by the CRC. The CtRC consisted of ten child law and policy experts until it was increased to

eighteen in 2003. The CtRC is an “independent expert of high moral standing and recognized

competence in the field and not a delegate acting under a national mandate” (Buck, 2011, 93).

The CtRC receives countries’ periodic reports and publishes their interpretation called General

Comments.

To conclude the international law section, it must be understood that there is a very strong

international law foundation to defend and support stateless people at any age. But, since

international law must respect state sovereignty, only states themselves can change their own

policies in order to comply with international law. My case studies will be used as examples of

states that are party to many international conventions, yet they fail in fulfilling the international

conventions’ requirements.

 

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Case Studies:

Bangladesh

Bangladesh has a large population of stateless people, with only 10% of children under the

age of five getting registered yearly (UNICEF, 2009, 1). This percentage is one of the lowest in the

world, leaving 90% of children not registered. “This low rate is attributed to several factors, such as

the absence of an effective and functioning birth registration system, the weak capacity of the

relevant local government authorities and low level of awareness” (UNICEF, 2010,1).

There are multiple and complex factors as to why the birth registration is so low, but first

we must take a look into international and domestic law. Bangladesh is party to the International

Covenant on Civil and Political Rights, the Convention on the Protection of the Rights of All

Migrant Workers and their Families 1990 and the Convention on the Rights of the Child. All

three of these treaties include articles that clearly state children must be registered immediately

after birth and every child has the right to a name and a nationality without being discriminated

against. Domestically, the legal framework behind birth registrations is weak. Before the Birth and

Death Registration Act of 2004, birth registrations were not mandatory.

“The birth registration system then relied on the village police or chawkidar to collect data on the occurrence of births, a system that did not function efficiently. This was due to a number of factors: the chawkidars were poorly trained and often illiterate and local government officials did not understand their responsibilities” (UNICEF, 2010, 19).

Bangladesh functioned without the need for identification or birth certificates. The lack of

needing identification or birth certificates is an obvious set back for Bangladesh because the

Bangladeshi people never felt the need to register births, since it played no purpose in their lives.

Identification or birth certificates were not needed to register children in school or get married or

for work, so there was no reason for the Bangladeshi people to pursue a birth certificate.

 

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The government of Bangladesh acknowledged the fact that their low birth registration rate

was an important issue that needed to be controlled, so they created the Birth and Death

Registration Act 2004 (BDR). This was the first piece of legislature to make birth registration

mandatory. The BDR Act 2005, section 8 states “a newborn child’s parents or guardian must

register a birth within 45 days” and section 13 states “if registration does not take place in the

allotted time period, a late registration is possible with stipulated procedure and extra fees” (BDR,

2004, 1). The BDR introduced a cross-sector approach by connecting birth registration with other

social services to increase the demand and necessity for birth certificates. Birth certificates were

now needed to register children into school, to obtain a drivers license, to received voter

registration cards and in many more areas. A major flaw of the BDR is that it does not state

specifically what the fee is to register births or what the late fee is. This flaw allows for corruption

where people are charged different fees, which some people cannot afford (IDLO, 2010, 4).

Factors Causing Statelessness

As mentioned earlier, there are various and complex factors as to the extreme lack of birth

registrations in Bangladesh. First off, the majority of the Bangladeshi population is uneducated on

domestic law and birth registrations. They are unaware that birth registrations are mandatory by

law, not only due to their lack of education, but also because it is a fairly new law, which was

created in the BDR 2004. In addition to their lack of education, birth certificates had never been

required in the past to enroll children in school or to get drivers license, so they are unfamiliar

with the new procedures. Another factor is that many women give births at home where nobody is

trained to register births. Children tend to go unregistered since their mothers are unaware that

they are legally obliged to register the birth and that they legally have up to 45 days to do it without

 

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a late charge. Another common reason why many mothers do not register their children is because

they are reluctant to register their children without the presence of the father. Most Bangladeshi

families, specifically in rural areas, consists of a stay at home mother and a father who is gone the

entire day working, it would be rare for the father to have the time to go with his family to register

their children during working hours. The children that are the most vulnerable are children born

out of wedlock to single mothers; they are the least protected by the government.

Since Bangladesh has recently, in the past seven years, made birth registration mandatory

and a priority, the government is lacking resources needed to affectively increase their birth

registration rate. The government does not have the essential budget needed and lack equipment

and trained employees. But most importantly, there is no national center for the Registrar of

Births and Deaths in the country.

“Lack of political will translates into weak enforcement with civil registration documents rarely demanded and little coordination and cooperation between the different ministries that have a stake in the system’s operation. This can lead to there being no clear responsibility for birth registration and no centralized authority existing at the national level to oversee it and ensure its integration” (Plan International, 2005, 30).

This is a major issue since there is no dedicated register to store birth and deaths and no electronic

versions, which results in inefficiencies, duplications and errors. Since there is no national

registrar, birth certificates are issued by independent people who do not have a national registrar

to report to, which can lead to corruption. Corruption is not commonly punished due to the lack

of supervision and violations are not punishable by law. Only the parents or guardians who are

responsible for registering the birth can be legally punished. No punishment currently exists for

false certificates or for employing workers or for admitting students without birth certificates

(IDLO, 2010, 5).

 

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Proposed Solutions by International Organizations

Solutions to increase the birth registration rate in Bangladesh can arise from different

approaches starting with the government. Since registration fees are a predominant reason why

parents do not register their children; birth registrations should remain as a free service provided

by the government and added to the domestic legislation. Keeping the birth registration process

consistent can reduce corruption by having an official registration or late fee set nationally. In

order to keep the process and fees consistent, the government must establish a national Central

Registrar. The establishment of a national Central Registrar is crucial to solving the issue of

stateless in Bangladesh, because it is the only efficient way to effectively collect, store and monitor

the data.

“The Births and Deaths Registration Act of 1873 put in place a legal framework for registration. Yet Bangladesh has no civil registration authority at the national level, nor is there a central level of responsibility to oversee these vital tasks. Plan International is working with government bodies to improve this situation by giving technical support to the government bodies of three districts and forming stakeholder committees to drive the process forward” (Plan International, 2005, 41).

Once a Central Registrar is established, it will open up other more effective ways of collecting data,

such as electronically. In 2002, the Bangladeshi government, with the help of UNICEF

Bangladesh, created the Birth Registration Information System, as a pilot, to register births

electronically. BRIS is the first central database for birth registrations in Bangladesh, which is used

by other public agencies, specifically health agencies. BRIS was established to store all birth

registrations while automatically issuing birth certificates. It also allows for birth registration

information to be retrieved whenever needed and it is used to monitor birth registrations by

generating timely reports (UNICEF, 2010, 22).

 

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“BRIS has removed duplication and redundancy from birth/registration records through the centralized storage of data. It has automated searching, sorting, processing and reporting tasks (such as those associated with immunization) and has very significantly reduced the time needed for such tasks. Error rates have also been reduced, with a combined identity number and bar- coding system. A CD-ROM of BRIS data has been created; to provide backup” (UNICEF, 2010, 23). In addition, adding or modifying already existing legislature will reduce corruption; more

articles need to be added that discuss violations and their punishments in order to have legal

reinforcement. Punishment for violations, such as using a false birth certificate or hiring employees

without a birth certificate, must be enforced. Two important already existing legislatures, the Child

Marriage Registration Act 1929 and the Muslim Family Laws Ordinance 1961 need to be updated

to include that in order to get married, birth certificates must be presented.

“In Bangladesh, marriage of a child under 18 is prohibited by law. However, a mere declaration regarding the age of the bride is enough for marriage registration. The incidence of early marriage could be reduced if all marriage registrars asked for birth certificates and proof of age” (Plan International, 2005, 23).

This modification would combat illegal child marriages and increase the demand for birth

registration, specifically for girls, since a birth certificate would be needed to marry off daughters.

Another approach needed to increase the birth registration rate in Bangladesh is by

increasing awareness and accessibility. Increasing awareness is essential because many Bangladeshi

are unaware that registering births is mandatory and are unfamiliar with the registration process.

The government can increase awareness by connecting birth certificates to various social services,

such as with health care.

“UNICEF has been working towards integrating birth registration activities into the routine Expanded Programme on Immunization (EPI) since 2007. The success of this integration has led to the incorporation of birth registration into the implementation

 

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programme for the newly launched Hib pentavalent1 vaccine in 2009” (UNICEF, 2010, 16).

The only issue with this attempt is that people are now constantly rejected for not having a birth

certificate and become discouraged, so they give up because they are unaware of what steps to take

to obtain a birth certificate or cannot afford the late fees. The only way to combat this issue is to

educate the people so they know what to do and when. The government, schools, religious leaders,

community leaders should all carry out campaigns to educate people on the importance of birth

certificates and explain the step by step process to obtain one for themselves or their children.

“Plan International engages religious leaders on the issue of birth registration. This has led Imams

to play a significant role in promoting birth registration by speaking about it through the mosque

microphone before and after prayers as well as through personal contact” (Plan International,

2005, 44). Campaigns should primarily target parents since they are responsible for registering

their children’s births, but children should also be targeted so they can be informed on their

rights. In addition, campaigns should primarily target rural areas since the lowest registration rates

are always found in rural areas. Since rural areas always have the lowest birth registration rate, an

increase of accessibility is critical to increasing the birth registration rate in Bangladesh. Since most

women give birth at home and not in hospitals, they must be given easy access to register the birth

in order for the child to not go unregistered. When a Central Registrar is created, employees

should be sent all over the country, specifically rural areas where they will be in charge of

registering all births in their area. They must be highly trained: understanding the importance of

birth certificates, knowledgeable in the procedure of registering births and be proficient in

                                                                                                               1 The Hib pentavalent vaccine is a combination vaccine that protects children against five diseases in one injection, including, for the first time, the deadly bacterium Haemophilus influenzae type b (Hib) that causes some severe forms of pneumonia and meningitis (UNICEF, 2010, 16).

 

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preventing corruption and false information. The Central Registrar would also allow for electronic

registration be set up in every hospital and birth clinics which would allow them to register

children immediately after birth, as intended (IDLO, 2010, 7).

Kenya

Kenya has an overall estimated birth registration rate of 48% on average, but the rate varies

dramatically across different regions in the country (UNICEF, 2009, 1). As usual, urban areas have

a higher birth registration rate than rural areas. Overall, urban areas have a rate of 64% and rural

areas have a rate of 44%, which isn’t too drastic. But by comparing individual areas there is

definitely a drastic difference, such as in the Central Province the rate is as high as 84% but in the

Eastern Provinces the rate is as low as 6%. “Disparities in registration rates can be explained,

amongst others, by uneven development among socio-economic groups” (IDLO, 2010, 6).

There are multiple factors as to why the birth registration rate is less than half and varies

within different regions of Kenya, but first we must take a look into international and domestic

law. Kenya is party to the International Covenant on Civil and Political Rights, the African

Charter on the Rights and Welfare of the Child, the Convention on the Elimination of All Forms

of Discrimination against Women and the Convention on the Rights of the Child. All these

treaties include articles that protect children in the most basic and essential way, which is to

register their births. Domestically, Kenya has the Births and Deaths Registration Act 1948 (BDR),

which is the primary legislature to manage birth registrations. Sections 8 and 9 state, all births

must be registered within the first six months of the child’s life (BDR 1948, 1). Since the BDR of

1948 was created while Kenya was still a colony of Britain, birth registrations were not officially

compulsory for all regions and races in Kenya, but only to select areas and races. In 1963, a

 

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compulsory registration of births was expanded to include Nairobi and eventually spread all over

the country by 1971. Due to the selectiveness of birth registration, it can be understood why there

is a large variation between regions. The BDR also states that if parents fail to register their child

during the six months grace period, they can be either fined for up to 500 Kenyan shillings or

imprisoned for up to six months. It also states that late registration is possible by paying a late fee

of 100 Kenyan shillings (BDR, 1948, 1).

Kenya has a government agency, the Department of Civil Registration, which is responsible

for registering all births and deaths in the country. “Registrars are located in each administrative

district and are required to forward lists of births and deaths on a weekly basis to the Principle

Registrar, who then updates the national database” (IDLO, 2010, 8). In more than half the

districts, the Department of Civil Registration uses a community-based system where they rely on

people from the community,

“Assistant chiefs are responsible for registering home births – a good system that brings the registration service into local homes. However, because of their poor pay, the assistant chiefs themselves see registration as an added burden for which they receive no proper compensation” (Innocenti Digest, 2002, 13).

In Kenya, birth certificates are required to enroll children into schools and to obtain any

official national documents, such as identity cards, passports and drivers license. Birth certificates

are essential for enrolling children into school because without one, the age of the child is

unknown, which commonly ends with the child being registered at the wrong time, later than the

recommended time. The Ministry of Education has officially stated that schools are not permitted

to accept students trying to enroll in primary school without birth certificates and the Kenyan

National Examination Council have also added that students are not permitted to take national

exams unless they have a birth certificate (IDLO, 2010, 6).

 

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Factors Causing Statelessness in Kenya

Factors causing Kenya’s low birth registration rate ranges from cultural norms to lack of

awareness. Naming a child is an important tradition in Kenya, which varies between ethnic groups.

Each ethnic group has its own traditions and procedures to naming a child, but overall a name is

chosen with a specific meaning that can relate the child to their heritage or a time period. Some

procedures of children naming take a long time resulting in the child not getting registered during

the grace period given because the child was nameless and a name is required to register a child.

Another cultural norm is the mistrust of the government, many Kenyans “fear that the

information provided through registration may be abused or misused to discriminate against them

and their children on account of ethnic or religious origin” (IDLO, 2010, 13). Since birth

registrations was introduced and became mandatory to only some races during the time Kenya was

part of the British Colony “registration has been seen by many as an alien concept inherited from

the colonial era, rather than as an important service. In addition, some communities are reported

to be reluctant to reveal the birth of a baby to strangers because of a fear of witchcraft and because

it breaks a traditional taboo on the counting of children” (Innocenti Digest, 2002, 15).

Lack of awareness is an important factor even though most Kenyans know that registering

births is compulsory, yet they are unaware of the procedures, costs and time limits. Most

importantly, Kenyans are unaware of the purpose of birth registrations and are unaware of the

benefits of having a birth certificate. Kenyan parents generally do not feel the urgency to register

their children due to a lack of the understanding the purpose of birth registrations. Many parents

wait until their children are rejected for not having a birth certificate to take the time to register

the birth, but they must be able to afford the late fee to actually get it done.

 

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Another common factor is that 38% of women give birth at home resulting in many of

those births not getting registered (IDLO, 2010, 7). The main reason why parents do not register

births that took place at home is due to inaccessibility to a registration facility or employee. The

Department of Civil Registration is responsible for making registration facilities and employees

accessible to everyone, but it faces many challenges. The Department is working with a very

outdated legislature, such as the BRD of 1948, which heavily limits their mandate. In addition to

outdated legislature, the registration procedure is also very outdated and still being run manually.

This manual process leads to more mistakes such as loss of records, misplacements, and wrong

information. The Department also has low funding, which results in inadequate equipment and

insufficient numbers of staff.

“For example, at district headquarters in Kwale, the three-person staff have just one computer and can only process around 200 birth records a month. This work can only be done after they finish serving clients, who come to register new births and deaths, and it is evident that better data management is urgently needed” (Plan International, 2009, 68).

Finally, there is a disconnection between the different agencies involved in birth registrations

where information either gets lost or simply not shared (IDLO, 2010, 13).

Proposed Solutions by International Organizations

First and foremost, Kenya’s government needs to update and amended its legislature to

include solutions to modern birth registration issues.

“In Kenya, an estimated 3.5 million children aged 6 to 15 are working – more than one quarter of all children in the country. Genuine enforcement of legislation to end such abuses requires the clear establishment of a legal minimum age for access to employment and a backdrop of effective birth registration to confirm the age of the children concerned” (Innocenti Digest, 2002, 5).

In addition, the government needs to provide incentives instead of penalties. Plan International

has found that the late registration fee really limits and discourages families to register their

 

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children after the six-month grace period (Plan International, 2009, 52). The most efficient way to

provide incentives is by linking birth certificates to social services. Parents must see the benefits of

registering their children in the early stages of the child’s life, so they feel like the effort was worth

it. Birth certificates should be linked to social services that are specifically needed in the early

stages of life, such as immunizations. Awareness campaigns are also essentially needed and they

should target primarily parents, both mothers and fathers. More accessibility to the Department of

Civil Registration is needed, especially in rural areas. “An evaluation in Kwale district in Kenya in

1999 found that, although birth registration was free, the costs of travelling into Kwale to obtain a

birth certificate were felt to be exorbitant” (Innocenti Digest, 2002, 14). The best way to make the

Department more accessible is by training home birthing personnel and midwives to register the

births and report it back to the department. Finally, the registration procedure and technology

needs to be updated, “Plan International is piloting community-led computerized birth

registration. By using mobile phone technology, it is possible to record data for birth notifications

and track the registration process” (Plan International, 2009, 68).

Liberia

Liberia has one of the lowest birth registration rates at an average of 4% due to the

country’s history (UNICEF, 2009, 1). Liberia’s low birth registration rate can be blamed on the

Liberian civil war. During the civil war, Liberia’s civil registration system was destroyed and Liberia

has had a tough time trying to rejuvenate the system. “The Ministry of Health and Social Welfare

is yet to re-establish facilities for the documentation and recording of data in a systematic manner”

(IDLO, 2010, 4). Due to the inadequate current system, the Liberian government has not been

able to collect accurate date on birth registrations. The Liberia Demographic and Health Survey in

 

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2007 found “that only 4 percent of Liberian children under age five have birth certificates. Birth

certificates are more common among children in South Central region and among those in the

higher wealth quintiles” (LDHS, 2007, 20).

Liberia is party to numerous treaties that emphasize the legality supporting birth

registrations, such as the Convention on the Status of Stateless Persons 1954 and the Convention

on the Reduction of Statelessness 1961, the two most important treaties regarding birth

certificates. Liberia is also party to the International Covenant on Civil and Political Rights 1966,

the African Charter on the Rights and Welfare of the Child 1990 and the Convention on the

Rights of the Child 1989. Since Liberia is party to all these treaties, it faces great international

pressure to increase its birth registration rate, but it also received international help since they have

the treaties as the foundation to build on. Even though Liberia’s domestic policies on birth

registration are unclear, the Public Health law 1971 chapter 51 states that birth registrations are

compulsory and penalties will be set for not registering births. It also states that the birth must be

registered within fourteen days but registration will continue to be free until the child is five years

old and after the age of five, registration will cost a late fee. The Ministry of Health and Social

Welfare and the Principal Registrar of Vital Statistics are responsible or administering and storing

birth registrations (IDLO, 2010, 6).

Factors Causing Statelessness

Even though Liberia has a unique history relating to its registration system being destroyed

as a result of the civil war, their factors currently causing their low registration rate aren’t unique.

Since their registration system was destroyed, there is an absence of a centralized registration

system, which makes registering being births extremely inaccessible. “Birth certificates were issued

 

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only in Monrovia, making registration difficult for suburban and rural dwellers that had travel

hundreds of kilometers to the capital” (Plan International, 2011, 1). One of the major factors is

the lack of education. Liberia has a high illiteracy rate, with 58% of women and 29% of men who

cannot read at all. Parents essentially need to be literate in order to register their child’s birth,

since it requires reading and filling out forms. The lack of awareness is another result of the lack of

education. Many Liberians, specifically in rural areas, are unaware of the process and importance

of registering births. They are unaware of the benefits a birth certificate brings and what

consequences of not having a birth certificate are; they simple do not see the purpose of registering

births. Uneducated parents who do not see the purpose of birth registration will eventually want

to register their child once a birth certificate is actually required but by this time, the child can be

over five years old and the parents must pay a late fee. If they cannot afford a late fee, the child

remains unregistered and living with the consequences (IDLO, 2010, 10).

Proposed Solutions by International Organizations

First and foremost Liberia’s legislature needs to be amended to include clear and effective

articles regarding birth registrations. Once Liberia has an effective legislature to work with, a

centralized registration system must be established. Also, the Liberian governments needs to

provide incentives by connecting birth certificates to social services, so the importance of birth

certificates will be heightened. Finally, awareness campaigns need to reach all regions, specifically

rural and poor areas. Awareness campaigns need to target parents, midwifes and village leaders.

They should also answer the fundamental questions such as, “how to register? Who can register?

When to register?” and most importantly, what are the advantages and importance of registering?

(IDLO, 2010, 10).

 

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Analysis of Case Studies

All three countries, Bangladesh, Kenya and Liberia have a strong foundation of

international law to encourage, support and advocate the right to birth registrations. They are all

party to two fundamental treaties, such as the International Covenant on Civil and Political Rights

1966 and the Convention on the rights of the Child 1989. But even with a strong international

law foundation, all three countries have extremely weak domestic legislatures when it comes to

birth registrations. Their legislatures are all outdated and unspecific forming a weak foundation to

birth registration laws and procedures. Even though they all share this common factor, their

legislatures’ weaknesses are due to different reasons. Bangladesh has a weak legislature because

birth certificates and identification cards were never required to carry out daily tasks, such as

registering children into schools or getting employed. There was not a need to have a strong

legislature since birth registrations were a very low priority. Kenya was a part of the British Colony,

and the British made birth registration mandatory but only for white people, so the Kenyans

viewed birth registration as a colonial custom that was only for the privileged. Since Kenyans were

excluded in the birth registration process, it was never a part of their custom and due to their

mentality that the custom is colonial; they do not trust it and refuse to follow colonial customs

since they have their own cultural norms. Liberia’s weak legislature is due to their political unrest

and instability, which have caused two civil wars resulting in the complete abolishment of their

prior civil registration system. Liberia has needed to start from scratch and desperately needs a

more effective legislature to provide the foundation to be able to start from scratch.

In addition to the lack of an effective domestic legislature, the factors causing statelessness

in Bangladesh, Kenya and Liberia are almost identical, including the lack of public awareness and

 

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lack of accessibility. The lack of public awareness is mainly caused by a lack of education since

birth registrations rates are found lowest in uneducated and illiterate families. People need to be

made aware that registering births is legally mandatory, since it was not mandatory in the past.

Also, people need to be literate in order to independently fill out registration forms; if they cannot

read the registration form, they would need to rely and trust a stranger to read it for them. The

lack of accessibility is a major reason why people do not register births, which stems from a

combination of issues. There is no coincidence that birth registration rates are found lowest in

rural areas since the highest percentages of uneducated and illiterate people live in rural areas.

Since all three countries were colonized and birth registration is a colonial customs, registrars are

always found in capitals and other major cities, which the colonizers planned and built. These

registrars are too far from rural areas and too expensive of a trip, which supports the mentality that

registering births is only for the privileged. Also, many women give births at home since hospitals

are either too far or too expensive. Since registering births requires a lot of effort and money from

people living in rural areas combined with their ignorance of the benefits of a birth certificate; they

do not see the point of it and do not think it is worth their time and money.

By combining these factors, we can see a common cause and that cause is the lack of social

development. There is no coincidence that birth registration rates are found lowest in

underdeveloped countries and in rural areas. “Unregistered children are always from poor,

marginalized or displaced families or from countries where systems or registration are not in place

or functional” (Africa News, 2003, 1). Overall, birth registration rates are always found lowest in

the most undeveloped places. The lack of birth registrations can be located to only one type of

area, which is an undeveloped area whether it is an entire country or certain towns. By analyzing

 

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this pattern, it becomes obvious that the lack of birth registration is a social development issue.

Since the lack of birth registrations can be located to specific areas, governments need to focus

most, if not all there attention to these specific areas in order to truly see an increase in the birth

registration rate. Bangladesh, Kenya and Liberia need to shift their priority from developing

economically to developing socially because as mentioned in social development theory,

developing socially will automatically develop economically because it will add more of the

population into the legal economic market. Since birth certificates have become mandatory in the

work place, people who do not have a birth certificate have to either get paid illegally without

paying taxes or find a job in the illegal market such as the drug trade. If governments make birth

registration a priority, by increasing awareness and accessibility, and provide birth certificates to

their entire population, people will finally be able to get a legal job and get paid legally thus paying

taxes. In general, if governments make birth registration a priority, they would see not only an

economic increase but also an increase in all social factors, such as literacy rates because more

children will be allowed to go to school. Also the infant mortality rates would drop since children

will be able to get vaccinated.

In addition to the common factors causing statelessness, the common proposed solutions

by international organizations to Bangladesh, Kenya and Liberia are practically identical. They all

need to update and amend their legislature, increase awareness and accessibility, link birth

certificates to social services, Bangladesh and Liberia need to establish a central registrar, and they

all need to update their registration systems from manual to electronic. In order to achieve this list,

Bangladesh, Kenya and Liberia all need to make birth registration a priority. For far too long, birth

registration was on a low priority in all three countries, mainly because birth certificates were not

 

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mandatory, but now they are, denying many people of not only their basic right as a human being,

but also their ability to be a part of society. As stated earlier, Bangladesh, Kenya and Liberia all

have a strong international law foundation; they need to use this strong foundation to inspire a

shift in priorities and promote birth registration to their number one priority. Another way to

achieve the list of proposed solutions is to welcome the help of international organizations such as

UNICEF and Plan International, since they have conducted the research, provided solutions and

have the necessary funding.

“Plan and UNICEF have been working closely together in their efforts to achieve universal birth registration. Their collaboration has adopted an integrated strategy built on each party’s respective strengths. UNICEF, as a UN agency, attracts high political attention at the global, regional and national levels, whilst Plan has many years of significant experience of working with partners at the grassroots level and recognizing children themselves as an important stakeholder group” (Plan, 2005, 33).

UNICEF and Plan International have not only proposed solutions to individual countries, but

have also proposed solutions to the international community. The first and most important

recommendation is for the international community to prioritize birth registrations by not only

advocating, but by also making birth registration a reporting requirement. They must refuse to give

funding to countries unless countries agree to provide birth registration data. The international

community must also see birth registrations as a factor in achieving the Millennium Development

Goals, since increasing birth registration rates affect many areas such as literacy rates and reducing

infant mortality. Finally, the international community must also, as much as possible, help

underdeveloped countries establish central registrars (Plan International, 2005, 52).

Conclusion

The lack of universal birth registration has been a growing problem in today’s world, with

around 40 million children a year not getting registered at birth. The lack of birth registration is an

 

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international issue affecting children all over the world. Stateless children are forced to live a life

full of consequences; they are forced to follow a long list of what they cannot do. These children

are the most vulnerable, since they are constantly being rejected and are exceedingly targeted by

criminals.

Due to the seriousness of this issue, my research question stated how can international

awareness and efforts help underdeveloped countries achieve higher birth registration rates to

protect the rights of the child? To begin to answer this question, I had to first find a theoretical

lens to help explain the issue of statelessness. The theoretical lens used throughout my paper was a

mixture of social development and human rights theory. Social development theory was used to

express that the lack of universal birth registration is a social development issue, since the lowest

registration rates are mainly found in underdeveloped areas. Human rights theory was used since

not registering births is a human right violation. Out of human rights theory, children’s rights

theory was also discussed since the focus of this paper is on children and their rights need to be

respected. In addition, the legal empowerment theory was mentioned since statelessness is also a

legal issue that heavily affects the poor and vulnerable. Once I established my theoretical lens, I

immersed into international law, which I consider to fall under the international awareness

mentioned in my research question. While researching international law, I only discussed areas of

international law that was directly relevant to my paper. I had to first describe how international

law was determined, mainly through treaties and custom law. I found the main treaties dedicated

to citizenship and statelessness, and made the case that citizenship is a customary law. I then

explained the different ways a person can acquire nationality. Finally I discussed international

child law by describing the process of how the United Nations resulted with the Convention on

 

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the Rights of the Child. My case studies followed, allowing me to incorporate my theoretical

perspective and international law background. I used the same format to present each case study,

which consisted of a country international and domestic law background, the factors causing

statelessness and proposed solutions by international organizations. Next, I analyzed all three of

my case studies where I found the common factors and common proposed solutions. I also

reconnected social development theory to the lack of birth registration, since I got the evidence

from my case studies that proved the lack of birth registration is a social development issue mainly

found in rural areas. Finally, I mentioned the importance of the role of international organizations

whose research has allowed us to understand the issue and has given us steps on how to combat it.

After all my research and analyzing, my argument persisted, governments can increase their birth

registration rates by changing or implementing new policies, so children will no longer be abused

and exploited with no means of an escape due to their lack of a birth certificate.

A quote from Plan International sums up this paper best, “universal birth registration is

impossible to ignore and entirely possible to achieve” (Plan, 2009, 6). We must understand that

the lack of universal birth registration is a completely solvable problem. Due to international

organizations’ research, we now have outlined steps that need to be taken in order to increase

registration rates. They have outlined steps that need to be taken by the international community,

by governments and by individuals themselves. A combined effort is needed to combat the lack of

universal birth registration; birth registrations need to be made a priority, not only by

governments, but also by the international community.

 

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