D.Z. v Netherlands

Parties (including notable third parties)

D.Z. (The Applicant/The Author); The Netherlands (The Respondent)

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Summary of Facts

The Author's mother was born in 1989 in China, but her birth was not registered in accordance with Chinese law.  She was trafficked to the Netherlands in 2004, aged 15. An investigation into her trafficking was terminated in 2009 and she was thereafter classified as an 'illegal alien' under Dutch law.

The Author was born in 2010 in Utrecht. On registration of his birth, the Author's mother provided no proof of his nationality, and his nationality was registered as 'unknown'.

The Author's mother attempted to change the Author's nationality from 'unknown' to 'stateless'. For this it was required to prove the Author's lack of nationality. She made several attempts to obtain confirmation from Chinese Authorities of whether the Author was considered a Chinese national. The Chinese Embassy told the Author's mother that it could only provide proof of nationality for the Author if she herself had been registered as a Chinese national, which she was not.

In July 2012, the Dutch municipality rejected the Author's mother's request to register the Author as stateless on the ground that the Author had not proved that he had no nationality. The municipality required official legal or State-issued documentation confirming that the Author was not a Chinese national. The decision was appealed and rejected at all levels, up to the Administrative Law Division of the Council of State, the highest appeal court in the Netherlands. At each appeal the Author's case was rejected on the grounds that the burden of proving a lack of nationality rested on the Author and not the municipality. The Council of State acknowledged that individuals entitled to protection were falling through a gap in the legislation but concluded that such a gap could only be remedied by the legislature.

Without being recognised as stateless, the Author could not acquire Dutch nationality. In 2015, the Author applied to be recognised as a Dutch citizen despite not being recognised as stateless nor holding a residence permit. The mayor of the municipality acknowledged that without a status determination procedure it was impossible for the Author to be recognised as stateless but argued it was beyond his Authority to make a determination about the Author's status. This decision was later upheld by the appeals commission, the Court of the Hague and the Council of State. At the time of the decision, the Author was living with his mother in a restricted freedom centre for failed asylum seekers. They had almost no contact with Dutch society and lived under the threat of deportation.

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Legal Arguments

Legal arguments by the Applicant

Article 24(3)

The Author submitted that there was a violation of his rights under Art 24(3) ICCPR. The Author cited the lack of reliable opportunity for him to acquire Dutch nationality during childhood and the years spent in ‘legal limbo’ because of the State party’s rules on statelessness, residency rights and acquisition of nationality.

The Author argued that, in considering the general scope of Art 24(3), the Committee should recognise the links between the right to a nationality and the individual’s right to enjoyment of juridical personality and respect for human dignity.

Article 2(2)

The Author argued that the violation of his right to acquire a nationality was the direct consequence of the State party’s failure to give effect to the rights enshrined in Art 24 through appropriate legislation and administrative rules. The Author argued this amounted to a breach of Art 2(2) ICCPR.

Article 2(3)

The Author claimed that the State party had failed to provide him with an effective remedy for the violation of Art 24 in accordance with Art 2(3) ICCPR.

Remedy

The Author requested the Committee to find a violation of his rights under the above articles. He also requested the Committee to recommend that the State party: (a) amend his record from ‘unknown nationality’ to ‘stateless’; (b) grant him a residence permit retroactive to his birth; (c) establish in law a statelessness determination procedure; and (d) amend Dutch nationality law to make citizenship available to stateless children born in the territory, but who hold no permit to stay.

Legal arguments by the Respondent

The State party acknowledged that the Author was unable to enjoy his right as a minor to acquire a nationality. The State party also noted that the domestic legislature was preparing two bills which would establish a statelessness determination procedure and provide an option for children born stateless in the Netherlands but without lawful residence to acquire Dutch nationality. The State party offered the Author €3,000 compensation for the violation of his rights and reimbursement of costs incurred because of bringing the complaint before the Committee.

The Author commented that the proposed legislative changes and offer of compensation were both inadequate.

Outcome

The Committee highlighted that, under Article 24(1), the primary consideration in decisions relating to a minor must be the best interests of the minor concerned as it forms an integral part of every child’s right to measures of protection.

The Committee noted that, according to the UNHCR Guidelines on Statelessness No. 4, States must recognise an individual as not having the nationality of a State which refuses to recognise that individual as a national. This includes situations where a State fails to respond to enquiries to confirm the individual's nationality. Further, ‘the burden of proof must be shared between the claimant and the Authorities of the contracting State to obtain evidence and to establish the facts as to whether an individual would otherwise be stateless’ (paragraph 8.3).

The Committee also noted that the Guidelines advise that if an individual is classified as having 'undetermined nationality' this should be for no longer than strictly necessary: ‘States need to determine whether a child would otherwise be stateless as soon as possible so as not to prolong a child's status of undetermined nationality. For the application of articles 1 and 4 of the 1961 Convention, it is appropriate that such a period does not exceed five years’ (paragraph 8.3).

The Committee noted the considerable steps taken by the Author's mother to establish whether the Author is recognised by China as a Chinese national. It noted that in rejecting the Author's mother's application to register the Author as stateless, the domestic Authorities had cited the lack of proof of the Author's nationality but did not outline any further steps that the Author's mother could take to obtain such proof. The Committee went on to note that Dutch Authorities made no enquiries of its own to determine the nationality of the Author, and that the Council of State acknowledged that the current state of Dutch law allowed individuals, including children, to fall through a gap in the legislation. Finally, the Committee noted the State party's acknowledgement that the Author was unable to effectively enjoy his right as a minor to acquire a nationality.

The Committee held that the State party's conduct amounted to a violation of the Author's rights under Article 24(3) ICCPR read alone and in conjunction with Article 2(3).

The State party was obligated to provide adequate compensation and to review its decisions on the Author's applications to be registered as stateless and as a Dutch citizen. The Committee requested that the State party ‘review its decision on the Author’s application to be registered as stateless in the civil registry of the State party, as well as its decision on the Author’s application to be recognized as a Dutch citizen, […] the Author’s living circumstances and residence permit, taking into account the principle of the best interests of the child and the Committee’s findings’ (paragraph 10).

It also required the State to take all necessary steps to avoid similar future violations, ‘including by reviewing its legislation in accordance with its obligation under article 2 (2) of the Covenant to ensure that a procedure for determining statelessness status is established, as well as reviewing its legislation on eligibility to apply for citizenship, in order to ensure that its legislation and procedures are in compliance with article 24 of the Covenant’ (paragraph 10).

Individual Opinion of Committee Member Yadh Ben Achour (concurring)

In relation to the Committee's findings on admissibility, the Member argued that Art 2(2) ICCPR can give rise to a claim in communication submitted under the Optional Protocol to the ICCPR (Rabbae et al. v. Netherlands cited). Second, the Member argued that the State party's breach of Art 2(2) was in fact the proximate cause of a violation of the Author's rights and that the Author's claim under that Article was therefore admissible. Finally, the Member noted that the State party's conduct fell within the scope of Art 16 ICCPR, amounting almost to a denial of the right to recognition as a person before the law.

Individual Opinion of Committee Member Hélène Tigroudja (concurring)

The Member argued that the case implicitly required consideration of Art. 16 (recognition of legal personality) and Art. 7 (humane treatment) ICCPR and that these should have been considered by the majority. The Member cited the cases of Penessis v United Republic of Tanzania (African Court on Human and Peoples' Rights) as Authority for nationality as a fundamental aspect of human dignity, and the case of Yean and Bosico Girls v Dominican Republic (Inter-American Court of Human Rights) which recognised the particular vulnerability of children who are denied the right to a juridical personality.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	International Covenant on Civil and Political Rights 1966	Arts 2(2), 2(3), 7, 16 and 24
International	Convention on the Reduction of Statelessness 1961	Art 2(b)
Domestic	Netherlands Nationality Act	Netherlands Nationality Act

UNHCR Statelessness Guidelines cited

UNHCR Guidelines on Statelessness No. 4

Key paragraphs of the Guidelines referred to

19, 20, 22.

Court's application of Guidelines

The Court cites the UNHCR Guidelines on Statelessness No. 4 and applies them in its reasoning and decision.

Available commentary

Akshita Tiwary, ‘Conferring Nationality upon Stateless Children: A Critical Analysis of Denny Zhao v The Netherlands’54 International Law and Politics 221

• The author provides a detailed analysis of the case. The position of the author is that it is unacceptable for anyone to have the status of ‘unknown nationality’, and one person should only be stateless for a temporary amount of time while they await nationality.
• The author argues that children do not benefit from being assigned the state of ‘unknown nationality’ or ‘stateless’, and as such, when faced with such situations as encountered by the Netherlands in this case, domestic laws and procedures should be ‘relaxed’ (page 231).

Irit Weiser, ‘The ‘Unknown’ Child – Zhao V. The Netherlands Brings to Light Problems with Statelessness Procedures’(2021) Global Justice Journal

• The article emphasises the importance of having nationality and how it can have a large impact on one’s life. Being a national allows you to apply for things such as housing and employment but it also impacts your sense of belonging and identity. The author applauds the ruling and believes it to be a great step forward in addressing the disadvantages caused by statelessness, especially for children.

Yoana Kuzmova and Thomas McGee, ‘Comment on the Zhao Case: Can a ‘Victory for Human Rights’ in the Netherlands benefit children at risk of statelessness in the Middle East and North Africa’(2022) 4(1) Statelessness & Citizenship Review 145

• The article celebrates the decision made and questions how this victory will impact other countries in the world. It concludes that the impact cannot yet be assessed but predicts that there may be hurdles of the universal application of the decision due to the limitations of the legal and institutional landscape in the MENA. The authors argue that this decision should be used to challenge similar violations worldwide.

Rodolfo Ribeiro Coutinho Marques, ‘Views adopted by the UN Human Rights under Article 5(4) of the Optional Protocol, concerning communication No 2918/2016’ (2022) 4(1) Statelessness & Citizenship Review 163

• The author emphasises the issues and outcome of the case as well as a critical analysis of the decision, particularly on aspects related to the burden of proof.
• The author observes that the decision that failed to adequately interpret the definition of a stateless person under the 1954 Convention, and to explore the link between the right to acquire a nationality and other rights including juridical personality and human dignity. Despite these shortcomings, the ruling still marks an important milestone in protecting the right to nationality and advancing global efforts to prevent and eradicate statelessness.

Michelle Foster, ‘D.Z. V. NETHERLANDS, UN Doc. CCPR/C/130/D/2918/2016’ (2022) 116(4) American Journal of International Law 850

• The author argues that D.Z. v Netherlands is a landmark decision because it interprets ICCPR Article 24(3) as imposing positive obligations on states to ensure that every child acquires a nationality, thereby significantly limiting state discretion in nationality matters, especially where statelessness is at risk.
• The Human Rights Committee’s reasoning (particularly its reliance on the 1961 Statelessness Convention, UNHCR guidelines, and the concept of shared burdens of proof) effectively requires states to establish statelessness determination procedures and proactive measures, and could have been further strengthened by deeper analysis of Articles 24(1)–(2), effectiveness, good faith interpretation, and the application of these principles to states not party to the 1961 Convention.
• Foster suggests that the decision opens the door to recognising broader human rights implications of statelessness that could potentially amount to violations of Article 16 (legal personality) and Article 7 (inhuman or degrading treatment). This also may contribute to the emergence of general procedural guarantees in international law concerning nationality and statelessness.