French writer Simone Weil, whose book was published posthumously in
1949, wrote in The Need for Roots: Prelude to a Declaration of
Duties towards Mankind, that "to be rooted is perhaps the most
important and least recognized need of the human soul... A human
being has roots by virtue of his real, active, and natural
participation in the life of a community which preserves in living
shape certain particular expectations for the future. This
participation is a natural one, in the sense that it is
automatically brought about by place, conditions of birth,
profession and social surroundings."!
Simone Weil worried greatly about geographical uprootedness. She
claimed that many human collectivities with clearly defined
territorial limits have disappeared, to be replaced by the
nation-state.2 She writes: "For a long time now, the single nation
has played the part which constitutes the supreme mission of
society towards the individual human being, namely, maintaining
throughout the present the link with the past and the
future."3
The Right to a Nationality
After the Second World War, the Universal Declaration of Human
Rights stated in Article 15(1), "Everyone has the right to a
nationality." Principle 3 of the UN Declaration of the Rights of
the Child (1959) extended this to "The child shall be entitled from
his birth to a name and nationality." In a discussion on this
Declaration, the representative of Uruguay4 said it was clear that
this principle "proclaimed a right of the child, and not a right of
parents, and that that right should be exercised by the legal
representative only when the interest of the child was at
stake."
The drafters of the UN Convention on the Rights of the Child
(adopted in 1989) strengthened this further. Now, of course, it is
a real convention ratified by states and not only a statement of
good intentions. Article 7, which was added to the text of the
convention, states that "the child shall be registered immediately
after birth," and imposed the duty on the concerned States-Parties
to "ensure the implementation of these rights - in particular where
the child would otherwise be stateless."
On the Declaration of the Rights of the Child in 1959, the
representative of Thailand had foreseen that, due to the
application of national legislation, some based on the principle of
jus sanguiril (the bloodline via father or mother) and others on
jus sol (birth on the territory) the Declaration could not prevent
statelessness.5 In contrast, the new Convention makes a larger
effort to prevent statelessness of children.
Article 7 should be seen in light of Article 2 where the Convention
is said to deal with "all children under the jurisdiction of the
State-Party."
The Syrian Arab Republic received an unpleasant surprise when the
UN Committee on the Rights of the Child raised the issue of
Syrian-born Kurdish children, who are considered to be foreigners
or maktoumeen ¬unregistered.6 The Human Rights Watch/Middle
East Watch Report Syria: the Silenced Kurds7 drew the attention of
the Committee on the Rights of the Child to the great
administrative and practical difficulties which exist regarding
registration of Kurdish children under the jurisdiction of Syria,
and to the absence of the possibilities for registration of these
children. When the issue was brought up, the Syrian representative
responded angrily that his delegation had come to discuss Syrian
children, not Kurdish children. Swedish expert member of the UN
Committee on the Rights of the Child, Thomas Hammarberg, answered
that he had come to discuss all children under the jurisdiction of
his State-Party.
In its concluding observations, the committee again underlined that
the right to be registered and to acquire a nationality should be
guaranteed to "all children under the Syrian Arab Republic's
jurisdiction without discrimination of any kind, irrespective, in
particular, of the child's or his or her parents' or legal
guardians' race, religion, or ethnic origin, in line with Article 2
of the Convention."
Israeli Discrimination against Palestinian
Jerusalemites
In this country, Palestinian residents of East Jerusalem have been
granted the status of permanent residents. This Israeli identity
card (not citizenship) provides them with the right to live in
their homes. It is strange to think that these Palestinians, with
so many roots here, have the same status as this writer - a Jew
from the Netherlands who rejected the Israeli nationality because
he did not want to lose his Dutch passport (the Dutch do not allow
double nationality). The Israeli government treats Palestinians
like the writer, an immigrant,8 although the Palestinians were born
in Jerusalem, have lived in the city for generations and have no
other home.
The policy of the Israeli Ministry of Interior in discriminating
between Israeli children and Palestinian children in East Jerusalem
is a violation of the non-discrimination article (Article 2) of the
Convention. The difficult situation of children from East Jerusalem
presses home the fact that the right to be registered is the most
basic article of the Convention on the Rights of the Child. If a
child cannot be registered, he or she cannot benefit from many
other rights, such as the right to social security, the right to
health services and the right to education. Moreover, the right to
family reunification and the right to be in contact with both
parents often cannot be implemented without registration.9 In
Jerusalem, if a child is not registered, he or she is liable to
lose his or her residency rights in the future.
Palestinian children are victims of an unusual situation: a peace
process in which there is no agreement either on a permanent
solution for the Jerusalem problem, or on the future establishment
of a Palestinian state. This situation leaves many Palestinian
children in a political no-man's-land. The Jordanian government
gave up claims to the West Bank territory, yet on a laissez-passer
(travel document), the Israeli government still puts "Jordanian" as
the nationality of Palestinians.10
It is obvious that if "the best interests principle" (Article 3) is
indeed a paramount consideration, many Israeli policies should be
reformulated in line with this obligation. But, it is also clear
that, although the Convention states that right to be registered,
the focus is on nationality. The unique situation of Palestinian
children under prolonged occupation was not foreseen. In this
respect, it will be interesting to see how the UN Committee on the
Rights of the Child deals with this particular issue in the
framework of the much-overdue official Israeli report on the
subject.
An Alternative Approach
DCI - Israel is coordinating a coalition of NGO's writing an
alternative NGO report which will certainly take up this issue of
registration with the UN Committee on the Rights of the Child in
Geneva, if the problem is not solved by then. Thomas Hammarberg
wrote that the Committee's view on the right to be registered as
developed in the Committee (when it exercised its duty to interpret
the Convention) was that:11
• A major "message" of the Convention is that each child is
an individual in her/his own right and as important as any other
person in the society. Therefore, every newborn child should be
recognized by the authorities responsible.
• The registration is a recognition by the state that the
child exists. The provision of all other rights depends on the
recognition. Children who officially "do not exist" may have
difficulties in having their rights fulfilled, now or later in
life.
• The right to immediate birth registration should be granted
to all children born in a particular area - without any
discrimination. Responsible for the implementation of this right -
as of all other rights in the Convention ¬is the government
exercising control over the area where the child is born. All
governments which have ratified the Convention on the Rights of the
Child are bound to implement its provisions (Israel is in this
category ¬P.Y.).
• Registration is important also for the purpose of
collection of data on children for allocating resources and
planning, for instance, of the school system. Without proper
registration, it is difficult to monitor the implementation of the
rights of the child in the particular country.12 Not all
governments have taken this aspect of the Convention on the Rights
of the Child seriously enough. A key issue has turned out to be one
of giving priority to this right.
The Committee has taken careful note of the word "immediately" in
Article 7. It has interpreted this to mean that registration should
take place as soon as practically possible, within days rather than
months after birth.
The Best Interests of the Child
As mentioned earlier, the right to be registered is, like other
rights of the Convention on the Rights of the Child, firmly linked
with the principle of the best interests of the child. The article
where this principle is formulated (Article 3) underlines that the
principle applies not only in the context of legal and
administrative proceedings, but in relation to all actions
concerning children. All articles of the Convention should be seen
in light of "the best interests" principle.
Evaluating the practice of the Israeli Ministry of Interior,
population control seems to be the major driving force, and the
best interests of the child are not only not a primary
consideration, they are not even a consideration to be taken into
account at all.
Martha Cullberg Weston wrote in a psychoanalytical reflection upon
a situation such as in the former Yugoslavia "that in a regressive
crisis situation, issues of boundaries acquire more important
significance. In the Balkans there was a need to have strong
borders between oneself and one's enemy and much concern was
expressed about the lack of effective borders. The ethnic cleansing
policy was in a sense an attempt to establish borders between
oneself and one's neighbor/enemy, who had become totally demonized
by projective processes."13
Unlike the Serbs, the Israeli government does not talk about the
other ethnic group being "impure" and about "removing the
infection," but present Israeli practices are highly dangerous and
now is the time to strengthen the social, political and cultural
institutions in the society that help to uphold non-regressive
social life. 14
The guidelines of the Convention on the Rights of the Child are
clear: the welfare of children should not be dependent on political
considerations and politically motivated procedures (such as
population control). The obligation to treat children equally
should be the main consideration of the Ministry of Interior, as
should be the fact that it is only the child's best interests that
are of paramount importance.
Endnotes
1. Simone Weil, The Need for Roots: Prelude to a Declaration of
Duties towards Mankind, with a preface by T.5. Eliot. London,
Henley and Boston: Routledge and Kegan Paul, 1952, p. 41. The
writer died in 1943 and her writings were published
posthumously.
2. Ibid., pp. 94-95.
3. Idem, p. 95.
4. Mr. Penades (Uruguay), October 6, 1959.
5. Mr. Suphamonghon in the General Assembly, 14th session - Third
Committee.
6. CRC, C1l5, add. 70, 24 January 1997, p. 3.
7. Human Rights Watch/Middle East Watch Report, Syria: the Silenced
Kurds, New York, Washington, D.C., October 1996. A Syrian NGO
report from the General Union of Women (Child Rights between
Reality and Law, Damascus, 1996) points out a "weak point" which
deprived children of a "Syrian mother who is married to a foreigner
of the rights to carry Syrian citizenship," But relating to
Assyrians, Kurds, Armenians, etc., the Union of Women states, "We
rarely hear in Syria the word 'minority.'" They state, in
contradiction to the Human Rights Watch/Middle East Watch Report,
"There is no difference in laws and practical life" between
minorities and others.
8. Ha-Moked (Center for the Defense of the Individual), and
B'Tselem (the Israeli Center for Human Rights in the Occupied
Territories), The Quiet Deportation, Revocation of Residency of
East Jerusalem Palestinians, Jerusalem, 1997.
9. Eliahu Frank Avram, "The Child's Right to Family Unity in
International Immigration Law," Law and Policy, Vol. 17, no. 4,
October 1995, pp. 397-439.
10. Article 8, Right of the Child to Preserve Its Identity, is
closely related to Article 7. But Palestinians in East Jerusalem
will want to be Palestinians even if their identity cards are
not.
11. Thomas Hammarberg, personal communication.
12. In countries where the human-rights situation is much worse,
registration is also important, Mr. Hammarberg pointed out, as an
important part against "disappearing" (for instance, in the form of
infanticide and trafficking).
13. Martha Cullberg Weston, "When the Words Lose Their Meaning:
From Societal Crisis to Ethnic Cleansing," Mind and Human
Interaction, Vol. 8, no. 1, 1977, pp. 20-32.
14. Ibid., p. 28.
This paper was presented at the conference "The Child's Right to Be
Registered - Unregistered Children in Jerusalem and the Quiet
Deportation," jointly organized by Defense for ChildrC1l
International (DCI) - Israel, Ha-Moked, the Jerusalem Legal Aid
Center (JLAC) and the Palestinian Society for the Protection of
Human Rights (LAW), May 1997.