Undocumented and Invisible: Are SADC Member States Implementing the Rights to Birth Registration and Nationality for Migrant Children?

Fortuin, Rowan Victor

Undocumented and Invisible: Are SADC Member States Implementing the Rights to Birth Registration and Nationality for Migrant Children?

Master Thesis

2022

Abstract

The Southern African Development Community sees high levels of migration. Many children within these groups are undocumented and have no means to prove their identities. This greatly increases their risks of statelessness, which opens the way to abuse, exploitation, trafficking, and the inability to claim their human rights. Birth registration represents one of the main protections undocumented children have in avoiding statelessness, as this reduces their chances of abuse, as well as provides them with a better chance of accessing nationality. Providing nationality is also important in reducing statelessness, as birth registration is not enough on its own. Therefore, whether birth registration and nationality are available for undocumented migrants in SADC member states is examined within both the international and regional legal contexts. International human rights treaties go a long way in providing rights to birth registration and nationality, but the scope of these rights is not infinite. International law takes a strong stance on birth registration, as it is provided in many of the main treaties, as well as the fact that it is linked to the best interests of the child principle. The right to nationality on the other hand is generally understood to have restrictive application in that migrants do not have the right to the nationality of the host state, a state must just ensure that a child has the right to “a” nationality. This reduces the ambit of protection. In turning to the SADC, the region in general was found to have a number of barriers to birth registration and nationality. For birth registration, gender discriminatory laws, centralised organisational structures, the COVID-19 lockdown, and penalties for late registration were counted as among the leading barriers to registration. This was similarly the case for South Africa and Zambia which were two key country profiles analysed. For nationality, there were many gaps in protection, such as uneven protection for foundlings and children who would otherwise be stateless, as well as onerous barriers to naturalisation. Given these findings, this dissertation concluded that SADC members are not adequately giving effect to their international obligations

Keywords

Public International Law

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