On February 18, 2010, Danny Zhao was born into Dutch legal limbo. His nationality at birth was registered as ‘unknown’ by the Dutch authorities. Had he been registered ‘stateless’, he would have had a path towards Dutch citizenship under the UN’s 1961 Convention on the Reduction of Statelessness, to which the Netherlands is a signatory. After exhausting all legal avenues to getting his status changed, Danny and his mother appealed to the UN’s Human Rights Committee. On December 28, 2020, the committee found that Danny’s human rights had been violated and has given the Dutch authorities 180 days to respond.[i]
How did this happen?
Danny’s mother was born in 1989 at the height of China’s one child policy. She, like so many girls at the time, was abandoned when her parents gave birth to a boy a couple of years after she arrived. Orphans and abandoned children in China are rarely, if ever, registered with China’s civil authorities. Registration (known as a ‘hukou’) is a prerequisite for accessing state services in China, including an official identity. In 2004, at 15, she was trafficked to Holland and despite escaping on arrival, her appeal for asylum was rejected by the Dutch authorities.
By 2006 she was forced into prostitution, escaping again in 2008. She again went to the Dutch authorities, but her investigation was terminated by the police a year later. She made several attempts to confirm her Chinese nationality, but without a hukou China said it has no record of her existence. Unable to prove her Chinese nationality, or lack of it, she was tagged in the Dutch civil registry as ‘unknown nationality’.
Here’s the thing: in order to change a nationality’s status from ‘unknown’ to ‘stateless’ in the Dutch civil registry you have to prove conclusively you either have a nationality, or you don’t. In Danny’s mother’s case that simply was not possible. This legal catch-22 is the sort of thing the UN’s convention on statelessness is supposed to address. Especially for children. In 2016 the Netherlands had over 13,000 children whose nationality registration entries were ‘unknown’.[ii]
Noting that there is no procedure for establishing statelessness, either nationally or internationally, that their courts are obliged to follow, the Dutch Council of State admitted, “[a]s long as the statelessness of persons without nationality has not been determined, they cannot invoke protection based on the Statelessness Conventions and the Dutch legislation pursuant to those conventions. However, it goes beyond the law-making task of the judiciary to fill in this gap”.[iii]
Not so fast, Holland
The UN Human Rights Committee disagreed. Under the International Covenant on Civil and Political Rights, children, because they are minors, have the right to special protections. Furthermore, the committee wrote that “States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born.” And that a, “contracting state must accept that a person is not a national of a particular State if the authorities of that State refuse to recognize that person as a national. A State can refuse to recognize a person as a national either by explicitly stating that he or she is not a national or by failing to respond to inquiries to confirm an individual as a national”.[iv]
What about a Virtual State?
Many of the issues around this case were addressed by the UN 60 ago. That countries signed on to international conventions decades ago still need require reminding of the content and actions expected under those conventions demonstrates the need for continued evolution in our definition of successful nation states.
From a practical standpoint, however, a Virtual State would necessarily sign on to the UN conventions on statelessness and human rights. Since rights in the VS begin with the UN Declaration of Human Rights, signing onto these conventions is a formality. Recognition and acceptance by the UN may be more challenging, however.
Nonetheless, a Virtual State could assist Danny and his mother in a couple of ways. One would be to legally confirm that an individual does not hold nationality and is therefore stateless. Another, would be to affirm nationality with the Virtual State and negotiate residency agreements with terrestrial nation states.
Other references inline.