Thursday, 16 May 2013

GUEST POST: An Insight into Nepalese Citizenship

As part of the course 'Nationality, Statelessness and Human Rights', taught every spring semester at Tilburg Law School, we ask students to analyse a country's nationality law against relevant international standards and then write a comment piece about it. Students who write the most compelling comments are invited to publish these here, on our blog site. Below is one of the three student pieces composed in 2013, we hope you enjoy it...

An Insight into Nepalese Citizenship

At first glance, Nepalese nationality appears relatively straightforward to acquire. Its Citizenship Act allows for citizenship by descent - where either parent must be Nepalese, by birth for those born prior to 1990 or by naturalisation. However, a deeper analysis would reveal that the country’s citizenship is in fact not simple to obtain. Despite one section of the law stating that having either parent as Nepalese is sufficient for a child to acquire Nepalese nationality, a separate section indicates that a child wishing to acquire his/her Nepalese mother’s citizenship must in fact have permanent residence in Nepal. Not only does this place a geographical restriction on children of Nepalese women and foreign men who desire Nepalese citizenship, it is also gender discriminatory since women are not allowed to pass on citizenship in the same way as men. In addition, the law creates the possibility that a child with a Nepalese mother and stateless father may become stateless if he/she resides overseas.

Acquiring citizenship by virtue of birth on Nepal territory is also limited to those born before 1990, hence Nepali birthright citizenship by jus soli is no longer in practice, with special exception given to foundlings. This leaves naturalisation as a remaining choice for citizenship acquisition based on a connection to the territory. However, the conditions for naturalisation appear relatively difficult to fulfil as one would need to have resided in Nepal for 15 years, during which he/she must be engaged in an occupation and has renounced prior citizenship. A less demanding naturalisation process exists for foreign women married to local Nepalese men. Such women are granted a specialised and expedited naturalisation procedure.

Additionally, dual citizenship for Nepalese is strictly forbidden, and acquisition of foreign nationality automatically invalidates a person’s existing Nepali citizenship. It has been suggested that Nepal’s nationality laws intentionally make it relatively difficult for foreigners to readily take up local citizenship or hold dual nationality due to Nepal’s geographical location. Being situated near highly-populated India and China, Nepal intends to discourage high influx of immigrants as well as reduce illegal cross-border settlements. Moreover, there is a strong presence of Bhutanese and Tibetan refugees seeking asylum and Nepal is somewhat reluctant to grant Nepalese citizenship to these persons.

It is interesting to note that Nepal’s nationality law sometimes fulfils the country’s international obligations while for other situations it does not. For example, Nepal does not have any measures to safeguard against possibility of statelessness for children born in Nepal territory. This is a violation of article 7 of Convention on the Rights of the Child, a convention which Nepal has been a party to since 1990. Nepal also does not state it would facilitate naturalisation for stateless children, another recommendation that could be read into the Rights of the Child Convention. However, there are also occasions where Nepal goes beyond fulfilling its own international obligations. This can be seen from how it intends to grant citizenship to persons on territories it may acquire in the future, a provision mentioned in the Reduction of Statelessness Convention.

I believe Nepal’s inconsistency in fulfilling international obligations regarding statelessness can be attributed to the fact that its nationality laws were not drafted with any consideration regarding statelessness. There exist opinions that its Citizenship Act was hastily formulated so that Nepali residents could obtain citizenship certificates which would allow them to partake in the country’s 2006 Constituent Assembly election. This is an opinion I find myself compelled to believe, as the law is evidently brief with regards to nationality issues such as statelessness and citizenship acquisiton for children. Instead, there is a proportionately larger emphasis on citizenship certificates and how to acquire them.

However, what seems to be a strength about Nepal’s nationality law is that citizens are only deprived of nationality in two instances: when citizenship certificates are obtained by fraudulent means and when a foreign nationality is accepted. Many other countries often include clauses stating that treason, participation in foreign military or engagement in crimes deemed highly detrimental to society would result in loss of nationality. Thus, although Nepalese citizenship is not easy to acquire, it is also not readily stripped away from those who already possess it. In this regard, there is lesser chance of citizens being made stateless later in life.

Hui Kin Ng, Exchange student visiting Tilburg University from Nanyang Business School - Nanyang Technological University Singapore, second year of undergraduate studies in Accountancy


1 comment:

  1. My son who was born in Nepali is currently stateless. My husband is British and I am Nepali. Both the countries have denied him a citizenship. How is this fair on us and on our son? Is there a solution? Are we to spend rest of our lives here without having the option to go anywhere?