GUEST POST: Jurisprudence developed by the Supreme Court of Nepal regarding the right to Citizenship

Courts play an important role in defining law in Common law legal system. This is considered good as it is supposed to bridge a gap in law. If prevailing laws prove inadequate to address the issues at the hand, then the Court plays some proactive role to address such problems through the interpretation of the law under its jurisdiction. The rulings are based on universally accepted legal and judicial principles, norms and standards. This can also be called judicial activism.

The Nepalese Court has played a significant role in making the country’s laws clearer and in the quest of justice. The Supreme Court of Nepal, as a head of the Judiciary has been playing a particular role in setting principles and norms for the protection of people's rights. This blog discusses the jurisprudence developed by the Supreme Court of Nepal regarding the interpretation of nationality law and constitutional provisions relating to nationality/citizenship, against the backdrop of international human rights law. Since, citizenship has been remained as one of the most contentious issues in Nepal for a long time, this piece aims to shed light on some positive aspects of the developments in this regard. 

One leading case related with discrimination against women to confer nationality to her daughter is centre-stage in this blog: the 27 February 2011 decision of the Supreme Court in the petition Sabina Damai v. Government of Nepal et. al., Writ No. 067-WO-0703 of the year 2067 BS (2010 AD).

Fact of the case:

Ms. Sabina Damai is a daughter of Ms. Gangamaya Damai but her father is still unknown. Ms. Gangamaya Damai left her birthplace Dolkha district (one of Nepal’s 75 districts) at the age of 22 and came to the capital city Kathmandu in search of employment. There, she became pregnant and gave birth to a daughter called Sabina. Ms. Gangamaya doesn't know who the father of her daughter is, as she had a sexual relationship with different men at that time.

When Sabina reached an age of 18 years (eligible age for citizenship is 16 years), she submitted an application to the District Administration Office (DAO) in Dolkha to get a citizenship certificate – this being the place where her mother is from and Sabina claiming the citizenship certificate by descent. But the Chief District Officer (CDO) denied her the citizenship certificate on the ground that her father is unknown and rejected her application through verbal notice.

Summary of the Court's Ruling:

In a writ petition filed by Ms. Sabina Damai, she asks for the court to review the decision by the Chief District Officer (CDO) to reject her application for a citizenship certificate and to order the Government of Nepal to issue such a certificate. She claimed that she was denied the citizenship certificate despite of fulfilling all of the requirements set by the law.

The Supreme Court maintained that citizenship certificates have a vital importance for every person. The citizenship certificate identifies one as a citizen of a country. It is also a prerequisite to enjoy civil, political as well as economic rights. One must qualify under the laws and constitution of Nepal as a citizen, in order to get a citizenship certificate.

Since Article 13 of the Interim Constitution of Nepal 2063 (2007) guarantees the right to equality, which means all of the citizens are equal before the law regardless of their sex, gender and other statuses Therefore women should not be the subject of discrimination at all, in issues relating to the citizenship certificates as well. In fact, the court stated, the law clearly provides that it is the right of the child to get a citizenship certificate in the name of mother who is already a citizen of Nepal, in case of unidentified father or missing one, as per article 8(2) of the Interim Constitution of Nepal. The court maintained that it is the fundamental as well as human rights of the child to get her nationality from mother.

In its ruling, the court also pointed out that Nepal is a State party to the Convention on Rights of Children (CRC), which provides that every child has right to nationality and his/her best interest, should be protected. As such, the court concluded, the Government of Nepal is bound to respect its commitments towards child rights and observe the treaty obligations.

On the basis of these considerations, the court ruled that since available evidence and proof establish that Gangamaya Damai, mother of Sabina Damai (the plaintiff) is a Nepali citizen by descent, and Sabina Damai has also born in Nepal, Sabina is entitled to get a Nepalese citizenship certificate by descent in accordance with the prevailing citizenship laws, as well as constitution of Nepal. The Supreme Court then ordered the District Administration Office of Dolkha to provide a citizenship certificate to the applicant.

Conclusion:

The above decision of the Supreme Court has major significance to the situation in Nepal for three reasons: i) in maintaining gender justice; ii) providing citizenship certificates to the thousands of eligible children whose father are missing/unknown; and iii) observing the treaty obligations and reducing statelessness. More importantly, in its ruling, the Court indicated the need for the state to adopt essential measures in addressing the problem of citizenship certificate as well as statelessness in Nepal.

In its verdict, the Supreme Court has emphasized on the principle of equality before the law as well as the right to nationality for all. In addition, it reaffirmed the principle of non-discrimination which includes the right to equal protection of the law for women and children, regardless of their status in society. Furthermore the Court added that it is the duty of the State to abolish all forms of ill and inhuman tradition and practices, customs, etc. against women through the enactment of proper laws. The traditional and conservative mindset which considers women as inferior to men need to be changed. Being two sides of the same coin, men and women are equal  in dignity and rights.

Today, the letter of the law doesn't restrict a woman from conferring citizenship to her children [(Article 8 (3) of Nepal Citizenship Act 2006]. However, it is not a well accepted practice in Nepal – that of granting citizenship in the name of mother, by descent. By descent is always interpreted to mean from the father or male, reflecting the still largely patriarchal mindset in society. Indeed, the criteria set in implementing rules under the citizenship law, namely the Citizenship Regulation and Directives, present a there is a particular obstacle to getting citizenship in the name of mother. These will now need to be amended as per the Supreme Court ruling.. It is a matter which needs to be addressed soon for a more just, peaceful and prosperous society. The decision of the Supreme Court has therefore been welcomed by human rights community, civil rights activists and all.

This guest post was written by Laxman Lamichhane, who is an Advocate in Nepal. He holds an LLM in International Human Rights and Refugee Law from Tribhuvan University, Kathmandu, Nepal.

From on-the-ground research to international lobbying

Every year, several countries are reviewed by committees – or ‘treaty bodies’– attached to the major UN human rights conventions to ensure that they are abiding by their international obligations, and to question them when they are not. This happens on a rotating basis for countries across all of the different UN committees. Before the committees address the countries, they ask review the report prepared by the relevant government about how the international norms are being implemented. They also collect and review submissions from NGOs and other organizations as to what they think are the most pressing human rights issues in the state and what is needed to address them. NGOs have an added opportunity of physically attending the pre-sessions, making a short oral statement on identified problems and answering any questions the committee would like further information on. This July, three countries in the Middle East and North Africa that still retain an element of gender discrimination in their nationality laws, came up for review before the Committee on the Elimination of Discrimination Against Women: Iraq, Qatar and Bahrain. Although Iraq’s law is now greatly improved, none of these states fully grant mothers the right transfer nationality to their children on an equal par to men – a situation which can lead to new cases of statelessness.

 

This issue tied in perfectly with our recent research with the Women’s Refugee Commission, “Our Motherland, Our Country”. Continuing our joint follow-up advocacy , we considered this to be an ideal opportunity to talk to the CEDAW committee about the consequences of gendered nationality laws, specifically the problems that emerged from the findings of this report.  So, yesterday I was in Geneva to give the Statelessness Programme’s first ever briefing of a UN treaty body. After a mix-up of the starting times and length of session, things finally got going and I was invited to deliver  a short presentation. This was followed by some questions from the committee, to help them fill any gaps in knowledge they had on the issue. The presentation we had prepared contained quotes from some of the testimonials compiled during the WRC research, contextualizing the issue as a real humanitarian problem, and highlighting how family unity is being destroyed because of this discrimination in nationality laws. 

 

NGOs from around the world can come and talk about any state law or practise they feel is in violation of the convention, and they all do this together in the same briefing session. This provides a fascinating opportunity to understand more about other topics which often directly correlate to our own interests. A very active women's rights NGO from Iraq, for example, joined the same pre-session I attended and had a lot to say about Iraq’s flaws in adhering to its CEDAW obligations - they spoke about topics varying from the rise in cases of FGM to the lack of female representation in parliament.  We also learnt from them of the phenomenon of men who are identified as 'terrorists' in Iraq, who are forced therefore to live without the protection of the law and unable to conduct any legal transactions. Some (informally) marry, have children and often eventually abandon their families without any legal trace - leaving a new generation of children with no form of identification and putting them at risk of becoming stateless.

 

My time at the CEDAW pre-session allowed me to witness some interesting presentations and a lively question and answer session. It was clear that the Committee was very eager to hear the voices of people working on the ground and it was also very satisfying to find that the application and the procedure itself of briefing such a committee is very simple and easy to navigate. I admit that I went in with some doubts about this form of advocating for change, which seemed a rather abstract mechanism of lobbying, far away from lives of those we had met during the field research. However, actually, experiencing the process and seeing the real interest and enthusiasm of the committee and the NGOs involved, I came away newly inspired and would now firmly vouch for the importance and necessity of continued international pressure and support – alongside national initiatives – for the promotion of universally gender neutral nationality laws. We are really looking forward to seeing how the information we provided will feed into the review and questioning of these three countries by the committee.

 

Zahra Albarazi, Researcher and MENA statelessness expert, Statelessness Programme

No Country, No Rights: Gender Discrimination and Statelessness (re-post)

An estimated 12 million people worldwide are stateless, with no country to call home. They are not recognized as nationals of the countries where they live, and as a result are denied basic human rights. For many people, this situation arises because of gender discrimination in nationality laws. This occurs when nationality legislation prevents women from acquiring, changing, retaining or passing on their nationality to their children and/or their spouses on an equal basis with men. This discrimination must end and nationality laws must be changed.

Today, the Women's Refugee Commission, and the Statelessness Program at the University of Tilburg (Netherlands) are launching a report, Our Motherland, Our Country: Gender Discrimination and Statelessness in the Middle East and North Africa.

The report is based on field research we conducted in Morocco and Egypt, which have enacted nationality legislation to address statelessness, and in Kuwait and Jordan, which still maintain gender discrimination in their nationality laws. Twenty-nine countries around the world, 11 of them in the Middle East and North Africa, still have discriminatory nationality laws that make it impossible for women to transfer their nationality to their children, or to their non-national spouses.

Being stateless has grave consequences, often leading to violations of fundamental human rights. Stateless people face many barriers and obstacles: without citizenship or identity documents they are unable to own or rent property, secure formal employment or access services such as public health care, education and social welfare benefits. Statelessness impacts individuals' ability to marry and couples' decisions to start a family. As one stateless woman in Kuwait who has no identity documents told our researcher, "I cannot get married. The court will refuse to allow me to sign a marriage certificate because I do not exist." It also impacts inheritance and property rights, leaving those affected unable to transfer their financial and material resources to their children. Not surprisingly, the research found that statelessness impacted mental health, with widespread depression reported among individuals and families affected.

The recent enactment of reforms to nationality legislation in Morocco and Egypt has enabled women to transfer their nationality to their children, thereby conferring rights previously denied. The reformed law of 2007 in Morocco states, "A child born of a Moroccan father, or a child born of a Moroccan mother, is a Moroccan child." The reform has led to a resolution of previous problems with regards to residency and access to public health care. The greatest impact of reforms in Egypt in 2004 has been the ability of families to remain in the country without fear of deportation and access to education and employment. The reforms in these two countries demonstrate the positive change in individuals' and families' lives when gender discrimination is removed from nationality legislation.

The Women's Refugee Commission recommends that governments take immediate steps to amend their nationality laws to allow women the same rights as men to pass on their nationality to their children and non-national spouses, with retroactive effect. We are also advocating for governments to provide access to basic rights for those affected by gender discrimination in nationality laws, in particular, access to education, health care, employment, identity and travel documents.

Many of the governments with these discriminatory laws have ratified the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) in addition to being bound by the Universal Declaration of Human Rights. It's time they live up to these obligations and reform their nationality laws to grant women equal treatment and stop the cycle of rendering generation after generation of children stateless because of whom you marry.

This post originally appeared on the website of the Huffington Post at http://www.huffingtonpost.com/sarah-costa/no-country-no-rights-gend_b_3398826.html

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

 

GUEST POST: Is Liberia’s nationality law sufficient for the 21st century?

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 selected in 2013, we hope you enjoy it...

Is Liberia’s nationality law sufficient for the 21^st century?

The most striking thing about Liberia’s nationality law is that it is out rightly racist. The first article explicitly states that only “A person who is Negro, or of Negro descent” can be considered a citizen of Liberia at birth. Furthermore, the same eligibility criterion applies for anyone who wishes to be naturalized as a citizen of Liberia. This is a law that blatantly violates international standards on so many levels, as it strips basic human rights from adults and children alike. This despite being one of the nation states which have acceded to the International Convention on the Elimination of All Forms of Racial Discrimination(1965)

Just like its first article, the bulk of Liberia’s nationality laws fail to comply with international standards. For the most part, the laws may come off as restrictive in terms of access to nationality, rather than ensuring that it protects people. In a sense, Liberia’s nationality laws can be described as being extremely archaic, comparable to that of the early 20^th century.

Other than being discriminatory based on race, the laws are also discriminatory against gender. In that, women do not have equal rights to nationality as men. This can be seen in article 21.31 of the nationality law, which basically says that a child can only obtain citizenship if the father is a citizen, or if the father is naturalized to become a citizen. This is so, even if the mother is a citizen. Which means that women do not have equal rights with men when it comes to the nationality of their own children. This violates many international norms which stress the importance of the equality of men and women, and in particularly article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women (1979), which says “States Parties shall grant women equal rights with men with respect to the nationality of their children”.

 

Imagine a hypothetical situation where a child is born to a citizen mother and a foreign father. If the father happens to be Negro, then perhaps it is well and good because the father can then be naturalized and pass on the nationality to the child, assuming all other criterions are met. However if the father happens to be Asian (or any other race without Negro descent), and is not able to pass on his nationality due to laws in his country for various reasons, or if he is stateless, then there would be no possible way that the child would be able to obtain citizenship, except later in his life. This however would mean that the damage would have already been done and a significant part of the person’s life would have passed. Not only is the woman stripped of equal rights as a citizen, she will be burdened with the inevitable situation of having a stateless child, which could lead to many other problems, including getting education and healthcare. Even though this is a hypothetical situation, it is one that has real consequences that could possibly happen because of Liberia’s biased laws. Therefore, it effectively encapsulates the flaws that plague Liberia’s nationality laws because many people, and children in particular can easily fall through the cracks to end up stateless.

Apart from being discriminatory, it is interesting to note that despite having acceded to the Convention on the reduction of statelessness (1961) in 2004, Liberia’s nationality laws still fall extremely short in its efforts to reduce the number of stateless people in its territory. An area that could be targeted is perhaps one that ensures that children in the state are not born stateless. For example, there are currently no laws that protect children against statelessness because the country does not guarantee citizenship to children born in the territory, or laws that ensure that foundlings do not end up stateless. Furthermore, the nationality laws also seem to lack safeguards and precautions, which could possibly prevent people from ending up stateless unnecessarily.

It is now the 21^st century and the Liberia nationality laws could indeed do with a massive facelift that was due years ago. If nothing else, it should at least strive to eliminate all forms of discrimination, and in particular that of race and gender. In addition, they could also implement safeguards that would act as safety nets to protect people from becoming stateless, and children from being born stateless. There are also no laws in place that protect people from statelessness in the context of loss or renunciation of nationality. These steps in preventing the statelessness of people, and children should be put in place, as it will go a long way to ensure that the global stateless population does not continue to grow.

Noreen Mohammad, 20 years old and currently on exchange at Tilburg University from Wee Kim Wee School of Communications and Information, part of the Nanyang Technological University of Singapore, where she is majoring in Communications

Introducing… Ivan Kochovski, intern assisting with research on nationality and statelessness in the MENA region

As I have been a part of the Statelessness Programme for a couple of months now, it is time to introduce myself and the work I have been doing at the Programme. My name is Ivan Kochovski and I am a LLM candidate at Tilburg University following the International and European Public Law programme with a specialisation in International Law and Human Rights. As of October 2012 I am an intern at the Statelessness Programme working on the “Nationality and Statelessness in the Middle East and North Africa Project” (MENA Project).

Supervised by both Dr. Van Waas and Ms. Albarazi, I am working on compiling fact-sheets on the situation of statelessness and nationality in each of the MENA countries using country reports prepared by local experts. Recently, I have also been working on a report examining the manner in which the issue of gender discrimination in terms of nationality has been dealt with for the MENA countries at the Universal Periodic Review (UPR) - the first universal review process examining all human rights questions in every UN country.

Statelessness is not an easy topic to get involved with. This is not to say that it is extremely difficult, but it is challenging nevertheless. While discussing some of the misconceptions I had about statelessness with my supervisors and colleagues and working on the MENA region, I realized that statelessness is not simply a problem of badly drafted nationality laws or inaccessible nationality procedures that rendered certain people without a nationality. Some of its main causes lie deeply rooted in the past and present political power relations within the countries and the region. The Bidoon in the Gulf Region, the Kurds in Syria, and the Palestinians in the Levant are just some of the groups that have been left stateless due to specific political reasons. This does not mean that the nationality laws of the MENA countries are not deeply problematic or that there aren’t issues with the procedures, but rather that the causes of statelessness are a combination of both legislative and political factors.

For instance, Jordan has a gendered nationality law and does not allow women to transfer their nationality to their children or spouses. Even though such discriminatory legislation can be seen as a purely legal matter, the issue becomes more complex with the fact that there are many Jordanian women married to non-nationals and the country is host to a large stateless Palestinian population. One of the reasons the Jordanian leadership has been reluctant to amend the nationality law, to allow women to pass on their nationality, has been the fear that allowing such a large number of non-nationals to acquire citizenship will create a shift in the demographics and the political constituency, possibly leading to unforeseeable political turmoil. Leaving aside politics for a moment, one must not forget the predicament of the stateless. The recent research of Ms. Albarazi in Jordan showed that many of the stateless in Jordan live in conditions of extreme poverty with no access to healthcare and with no prospects of meaningful education or employment. The discriminatory provisions do not create only problems for the women and their spouses, but perhaps most worryingly for their children. Some of the interviewed women have indicated that their children have no future. The only way out of that situation for the girls is to marry a national and acquire his citizenship. The boys, who have no such possibility of regularizing their status, often drift between illegal jobs and are strongly discouraged by their parents from marrying or having children because that will create only further problems as they will not be able to provide for their family and will transfer the same predicament to the future generations.

Going back to the influence of politics on the issue of statelessness, perhaps the most prominent example in recent years of how nationality can be used as a strong political tool is the 2011 decree issued by Al-Asad’s government allowing a portion of the stateless Syrian Kurds to acquire citizenship. In the 1960’s as part of its Arabization policies the Baath government denationalized more than 20 percent of the Kurdish population. After the civil war broke out in early 2011, the government, in order to gain the support of the Kurdish population adopted a decree that would allow more than half of the 300 000 stateless Kurds to acquire a citizenship. Even though there is limited information on whether this procedure has been implemented and perhaps statelessness is not the top priority in Syria at the moment taking into account the heinous atrocities being committed there, the 2011 decree is one of the clearest examples of how nationality can and is being used for political gains by governments. Syria’s nationality laws are also discriminatory towards women and there are reportedly more than 100,000 women married to non-nationals. As was the case with Jordan, one can see that the issue here is not purely political or purely legal. The Syrian government has also feared that granting more than 100,000 men married to Syrian women and their children nationality might cause a shift in the political dynamics of the state. As in Jordan, the stateless in Syria have lived in dire conditions for years and since the escalation of the violence the situation has grown worse.

There are many more such examples both from the MENA region and other regions in the world. The Nubians in Kenya, the non-citizens in Latvia, the Roma in the Balkans, the Rohingya in Myanmar and the Haitians in the Dominican Republic are just some of the groups in other parts of the world whose condition has been created due to both political and legal factors and continues to be detrimental due to both political reluctance to solve the issue and a lack of appropriate legal and humanitarian protection.

But what does this all mean in terms of solving the issue? Where do we find a solution? Do we look for a single solution or do we search for solutions in all aspects of the problem that would require more time? Given the limited resources, should one focus on the humanitarian side of the issue by trying to eliminate the extreme poverty and dire living conditions rampant among these populations or focus on pressuring states to live up to their human rights obligations and provide protection for these groups? Should short term goals, such as providing immediate humanitarian assistance, or long term goals, such as pressuring states to adopt legislation that would provide safeguards against statelessness, be a priority? Should the focus be on reminding the international community of its responsibility towards protecting stateless individuals? Or maybe even lobbing for the adoption of more effective measures in dealing with statelessness on the international legal and political level?

I do not have the answers to all of these questions. However I do think that in order to deal with the problem effectively the focus should be placed on all factors rather than just one. Even though this might sound too optimistic, the complex nature of the issue of statelessness necessitates a more comprehensive approach that would deal with the various factors on the local, national and international level. Exploring some of these specific factors and possible solutions to statelessness would require a different blog post or a more elaborate study. Nevertheless, by working on the MENA region both through the fact sheets and the report on how the UPR procedure has death with the issue of gender discrimination and nationality I continue to discover and grow to understand the specific aspects of the issue of statelessness in the MENA.

Ivan Kochovski, Statelessness Programme intern

Punished for not having a Jordanian father

I have been working on the issue of statelessness for several years now.  During this time, I have focused mainly on legal research and awareness raising work, and I have been continually fascinated by the legal intricacy statelessness unfolds.  Despite this interest, and despite having done previous field research on the issue, I do not think I truly comprehended the extent of the problem of statelessness until now.  Through my involvement in a project co-ordinated by the Women’s Refugee Commission, conducting advocacy-oriented research in four countries that maintain or have recently removed gender discrimination from their laws, I have had the opportunity to spend time with affected families.

I am now coming to the end of my stay in the first country of research: Jordan.  Here, women are not entitled to transmit their nationality to their children so, in a variety of circumstances, children of Jordanian mothers end up stateless. My time here has emphasised how, as well as being a legal, political and theoretical conundrum, statelessness really is a major humanitarian problem.  Having compiled nearly 50 testimonials and facilitated several focus group discussions, I have discovered something unique in each story and the problems it highlighted.  Women’s inability to confer nationality has affected each family differently, but it has also affected each family severely.  

I have sat in houses listening to women explaining how their children have, over the years, become increasingly ill as access to free healthcare was barred due to their lack of nationality.   Added to this, as they are not Jordanian citizens, these children rarely have access to assistance provided by charities.  I have been amongst young disillusioned men who are repeatedly arrested and temporarily detained as they carry no ID documents –being children of female Jordanian nationals gives them no right to identity papers.   I have been in houses where the men sit all day at home, with no hope of finding legal employment, and seen foreign husbands who have to choose between remaining unemployed or working and risking deportation because they can’t afford expensive work permits.

Many of the families I met lived in very poor areas.  Statelessness in these areas has one thing in common - it protracts, prolongs, and exacerbates this poverty.  However it was not a problem exclusive to the poor.  There was also the college student I met who was not able to travel because of her situation, and whose mother worried as she could never inherit from her family, since registering anything under her name is impossible.

Whilst in Jordan I also heard of a high-profile case of a Jordanian women who was attempting to commit suicide by jumping off a bridge.  Her husband and children are trying to cross the border from Syria to Jordan to escape the violence.  They, however, were refused entry.  Putting aside regional politics, the fact that the man was married to a Jordanian, or that the children had a Jordanian mother, meant nothing.   Not only can the children not obtain Jordanian nationality, they do not have the right to even enter their mother’s country under extreme humanitarian circumstances.  

Not having the right to confer nationality to your children is often framed as a women’s rights issue. In the Levant region there has been much positive action and a variety of initiatives have sprung up to try and repeal this gender discrimination. And yes, it is clearly a gender issue, but this should not overshadow the fact that it is also so much more.  It becomes a child’s rights issue when you ask a nine year old boy what he wants to be when he is older, and he replies that he can’t continue school for long, so nothing.  Or when a two month old newborn is ill and coughing in the cold but has no access to free healthcare anywhere, as she is not a citizen of anywhere.  Furthermore, it is often the men that suffer the most from this discrimination in the region.  In addition to not being able to work and provide for their families, most families said they would only allow their daughters to marry citizens, so that they would be able to become Jordanian and the next generation’s access to nationality is also assured. For the stateless sons, the future is bleak – men have no hope of acquiring nationality through marriage and their children are doomed to inherit their condition.

Sitting in these houses and being amongst these families, gaining a very brief glimpse of the day to day, year to year, generation to generation struggles they experience highlighted how this really is a serious problem everywhere, with still so much more to be done.  One sentiment however that I heard from the majority of these families was their continued optimism that there can, must and will be a reform of the nationality law.  A sentiment that I have taken away too.

Zahra Albarazi, MENA nationality and statelessness expert, Statelessness Programme

ABOUT THIS PROJECT:
This is the first phase of the project The Statelessness Programme is conducting as commissioned by the Women’s Refugees Commission. The next stage of the study will be conducted in Morocco.  Discrimination in the nationality law was removed there in 2007 and the research hopes to discover how this amendment is being implemented and how it has impacted on the lives of the families who had been affected by this discrimination. The full findings of this project, alongside the video component will be available later in 2013.

Photo taken during a focus group discussion - most of the meetings were in people's homes, but this group met in relatively posh surroundings

GUEST POST: A Global Campaign to End Statelessness - The Time Has Come

For too long statelessness has remained a sleeper issue. This is surprising considering that UNHCR's latest statistics confirm 3.5 million stateless persons worldwide and estimate that the number is closer to 12 million. Furthermore, the problem has persisted all around the globe.  

In Europe, the break-up of the Soviet Union, Yugoslavia and Czechoslovakia produced millions of stateless persons who fell between the cracks of new nationality criteria adopted by successor States or were unable to satisfy administrative requirements for acquisition of a new nationality.  Historically, racial and ethnic discrimination (often codified in law) against minorities has been a major cause of statelessness. Twenty-six countries found in the Americas, Africa, Asia and the Middle East, still retain nationality laws which prevent women from passing on their nationality to their children on an equal basis as fathers, thus creating a risk of statelessness that can be passed down from generation to generation. Recent flare-ups, from the violence between the Rakhine and Muslims in Myanmar to protests by the Bidoun in Kuwait, find a common denominator in decades-long statelessness situations in these States.

Since its creation, UNHCR has worked to provide international protection and find durable solutions for stateless refugees who are covered by its Statute and by the 1951 Refugee Convention. However, it was only in 1995 that the UN General Assembly passed a resolution conferring upon the Agency a global mandate to identify and protect stateless people and to undertake activities to prevent and reduce statelessness. At the Ministerial Meeting convened by UNHCR in 2011 to mark the 50^th anniversary of the 1961 Convention on the Reduction of Statelessness, an unprecedented number of States pledged to take action on statelessness: to prevent and reduce the problem and to recognise the status of stateless people. More than 30 countries undertook to accede, or take steps to accede, to one or both of the Statelessness Conventions.

Implementation of many of these pledges will be assisted by the issuance of recent UNHCR Guidance on: the definition of a stateless person; the establishment of statelessness determination procedures; the status to be afforded to stateless persons when they have been identified; and forthcoming guidelines on preventing statelessness amongst children in accordance with the principles of the 1961 Statelessness Convention.

Although the last few years have witnessed a heightened awareness of the plight of stateless people and an increased willingness on behalf of States to address statelessness, there is still a need for a global groundswell of concerted and coordinated action by various actors, including civil society groups, scholars, the media and affected individuals themselves, to end statelessness. Given the links between the causes and consequences of statelessness and other well-supported human rights issues, including gender discrimination, children’s rights and prevention of arbitrary detention, part of the task is to better understand the points at which these issues and statelessness intersect and to engage a wider pool of advocates to include action on statelessness as part of their advocacy strategies.

To encourage this process, on 3 July 2012, UNHCR convened an informal half-day strategy meeting on the margins of its 2012 Annual NGO Consultations.  A total of 26 NGO representatives participated from organizations working on statelessness based in 13 countries across Africa, Asia, Europe, and the Americas.  Key proposals to increase action and awareness on statelessness by NGOs and to advance a global network or coalition to end statelessness included:

• advocacy by international and field-based NGOs on statelessness concerns before international human rights mechanisms (for example, the Universal Periodic Review, treaty bodies and special procedures);

• action to ensure implementation of State pledges relating to statelessness made at the Ministerial Meeting in December 2011;

• improvement of existing and creation of new opportunities for collaboration between UNHCR and NGOs to address statelessness; and

• development of a global matrix of NGOs working on statelessness  to improve networking, coordination and joint action, including advocacy within the UN system.

UNHCR is very pleased to see the emergence of the European Network on Statelessness (ENS). The actors working on statelessness need to set ambitious objectives to address this global problem.  A first step towards our common goals is to involve a greater number of organisations, to ensure better coordination and exchange of information and to develop a common research and advocacy agenda.  ENS is leading the way at the European level.

For a range of documentation on statelessness, please visit UNNHCR's Refworld page: http://www.unhcr.org/refworld/statelessness.html

Mark Manly, Head UNHCR Statelessness Unit and Radha Govil, UNHCR


This Blog originally appeared on the website of the European Network on Statelessness (www.statelessness.eu), a civil society alliance committed to address statelessness in Europe, of which the Statelessness Programme is a founding member.

How gendered is citizenship? A teaching resource

A global survey published by UNHCR in March 2012 identified over 25 countries in which severe pockets of gender discrimination remain in the nationality law. The emergence of new cases of statelessness thanks to these laws is a real and pressing concern. To explore this problem in greater detail, the Statelessness Programme convened a roundtable debate on the question “how gendered is citizenship?” on 19 April 2012. The objective was to shed further light on the unequal nationality rights of men and women, with a particular focus on the link between such forms of discrimination and the problem of statelessness.

The invited experts were: Prof. Cees Flinterman (CEDAW / UN Human Rights Committee), Ms. Radha Govil (UNHCR) and Prof. René de Groot (comparative nationality law expert). Under the guidance of Sebastian Köhn of the Open Society Justice Initiative, they discussed the historic origins of the unequal nationality rights of men and women, before turning to look at the factors that have contributed to the wave of legal reform that has been achieved across the globe over the past few decades. They also provided a more detailed commentary on the link between gender discrimination and statelessness, the role of various UN bodies in helping states to address these issues and areas in which further research and action is needed.

A full video of this rich debate has been made available online and can be viewed here. Although the film is rather lengthy, we hope that it will be a helpful teaching resource. Some discussion questions to help guide the viewer or to address in class following a presentation of the video are provided below.

What are the different forms of gender discrimination that can be found in the context of citizenship policy?

How can gender discrimination in nationality law lead to new cases of statelessness?

What are the historic origins of gender inequality in nationality law?

Is it always women who are disadvantaged when it comes to nationality rights?

What does human rights law say about the nationality rights of men and women?

Which countries have recently granted women equal nationality rights with men and how has this taken shape?

What is the respective role of UNHCR and the UN human rights system in promoting gender equality in the enjoyment of nationality rights?

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Rottmann and Genovese: How will Europe’s nationality laws stand up to the scrutiny of its regional courts?

For such a core area of domestic law, that goes to the very heart of the question of who we are and who belongs within our community, it is somewhat surprising how often the rules relating to nationality are held up for review. Just in the past week or so, nationality policy has been in the news again in the Netherlands. The latest proposal centres upon an apparent desire to limit the incidence of dual nationality – i.e. to make it more difficult for people to hold both Dutch and a foreign citizenship simultaneously. The suggested legal reform would result in people automatically losing their Dutch nationality if they were to naturalise abroad, while would-be Dutch nationals will also be expected to forfeit their original citizenship once they have been approved for naturalisation. In itself, such a reform would not necessarily raise any difficulties in terms of the Netherlands’ international legal obligations with regard to nationality policy, since it neither looks to be discriminatory nor should it immediately lead to cases of statelessness. However the further tightening of naturalisation requirements that is also part of this reform proposal will inevitably make access to Dutch nationality more complicated, potentially also for vulnerable groups such as stateless people or refugees for whom facilitated access to naturalisation is of vital importance.

Moreover, the debate surrounding this newest proposal to amend the Dutch nationality act does not address an existing area of discrepancy between the law and the state’s international commitments. As pointed out by numerous actors, most recently in a December2011 UNHCR report, the Dutch nationality act requires a period of “lawful stay” for a child who is born stateless on Dutch territory to acquire citizenship under the requisite safeguard. This is not in conformity with the Netherlands’ obligations under the 1961 Convention on the Reduction of Statelessness, to which it has been a party since 1985. It is unfortunate that the latest debate on Dutch nationality rules concentrates on a fascination with dual nationality – a phenomenon that in reality has both pros and cons for the state, and is not currently a major international concern – rather than a desire to fully implement key international standards relating to the prevention and reduction of statelessness.

The foregoing is somewhat remarkable given that overall legal developments within Europe demonstrate increased scrutiny of domestic nationality policy, precisely with a view to combating statelessness and discrimination. There are, indeed, regional instruments dedicated specifically to steering states’ regulation of nationality in which these principles play a guiding role, including the innovative European Convention on Nationality adopted in 1997. Moreover, the development of jurisprudence by the European Court of Human Rights and the Court of Justice of the European Union and culminating, respectively, in the Genovese and Rottmann rulings demonstrate just how closely examined European states may expect their nationality policy to be in future. Each marks the culmination of developments over a 15-20 year period, during which the respective courts progress from a largely theoretical acknowledgement that they are empowered to scrutinise states’ nationality laws to an actual ruling on the lawfulness of a particular nationality policy. It would therefore seem wise for European governments, including that of the Netherlands, to take this into account if they are considering amendments to the nationality law and keep a keen eye on their international obligations in this field.

In Rottmann, the case centred on the question as to whether a decision to revoke citizenship acquired through fraudulent naturalisation raised problems under EU law, given that it would result in the concomitant loss of EU citizenship and indeed statelessness. The Court of Justice reasserted its position that regulating access to nationality was, in principle, a sovereign matter for each state, but that EU member states must have due regard for EU law when setting the conditions for the acquisition and loss of nationality. As such, it was possible for nationality issues to fall within the jurisdiction of the court and the potential loss of EU citizenship was enough reason for the court to proceed in assessing the legitimacy of such a decision in this case. The court decided that responding to fraud could be legitimate reason for withdrawing nationality, but that the decision to do so in an individual case must weigh the facts of the fraudulent act against the ultimate consequences of loss of citizenship. In other words, a proportionality test needs to be met, taking the person’s overall legal situation into account. Elsewhere in the Rottmann ruling, the court also ponders the question as to whether the influence of EU law – and the reach of the court’s own jurisdiction – also stretches to decisions relating to acquisition of nationality. The circumstances of the case allow the court to defer this question for the time being, but the wording of its assessment suggests that such matters could also be held up for scrutiny in the future. Thanks to the link to EU citizenship, it appears that there is now every scope for the Court of Justice to test EU states’ nationality policy against core EU principles such as proportionality and non-discrimination. Nor is the court afraid to seek further inspiration for its rulings in other areas of international law, such as the 1961 Convention on the Reduction of Statelessness and the European Convention on Nationality, both cited as part of the court’s assessment in the Rottmann case.

Similarly, the Genovese case illustrates how the European Court of Human Rights now deems questions relating to the regulation of nationality to be firmly within its jurisdiction, despite the absence of the right to a nationality in the European Convention on Human Rights. Here, the court determined that even though Malta had gone “beyond its obligations” under the European Convention on Human Rights in creating an entitlement to citizenship by descent within its law, this did not put the law itself beyond scrutiny and it must, as such, meet the non-discrimination test. Maltese legislation failed this test because it discriminated both on the basis of gender (different rights in terms of transmission of nationality to children for men and women) and on the basis of illegitimacy (different rights in terms of acquisition of nationality from a parent for children born in and out of wedlock). Central to the court’s assertion that the Maltese nationality law could be scrutinised in this manner was its recognition of citizenship as a part of a person’s social identity, thereby bringing this issue generally within the scope of the protection offered by article 8 of the European Convention on Human Rights as an element of private life. This broad statement on the meaning of nationality and the link to the European Convention on Human Rights will allow the court a wide margin in the exercise of its jurisdiction over questions of nationality policy in future – on top of which previous jurisprudence already indicated that other articles of the Convention could potentially also be invoked.

The clear recognition of the regulation of nationality as an area over which, given the right circumstances, jurisdiction can be exercised by both these two regional courts should make European states give more careful consideration to this area of policy in future. The inconsistency of Dutch nationality law with its obligations under the 1961 Convention on the Reduction of Statelessness is just one example of the many difficulties that can still be encountered in Europe. Across the region, there is evidence that legislative safeguards that should protect people from statelessness are being implemented inadequately – as seen, for instance, in the citizenship scandal in Denmark that hit the media in 2011. There are also other pockets of evidently discriminatory nationality law or practice, like that of Malta, which was found to violate the state’s obligations under the European Convention on Human Rights in Genovese. Again, Denmark can be cited here, but also Austria and several others. Following the Rottmann and Genovese rulings, there is increased scope for such policy to be brought to the attention of – and struck down by – Europe’s regional courts. So, as nationality law reform is contemplated by any European government in the coming years, this should be informed not only by changes in popular sentiment or notions of public interest, but also clearly guided by the state’s international commitments to the avoidance of statelessness and to a non-discriminatory nationality policy.

An article looking in detail at the Rottmann and Genovese rulings and their position among overall legal developments within the EU and Council of Europe with regards to the regulation of nationality by states has been submitted for publication in the European Journal of Migration and Law. If accepted, the piece will appear in a special edition of this Journal, featuring a series of reflections on the issue of statelessness.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

Citizenship and the European Court on Human Rights: The case of Genovese v. Malta

Although the right to a nationality is prescribed under several international legal frameworks, it is not contained as a provision in the European Convention of Human Rights.  Subsequently, cases of denial of nationality could not be brought before the European Court, unless one of the consequences of this denial was to violate a separate provision.  In October 2011 however a judgement on a case relating to gender discrimination in Maltese nationality law was passed before the court. The implications of the decision could potentially be a very important step in the right to nationality being accepted under the courts jurisprudence.

The case

Mr. Ben Alexander Genovese was born, out of wedlock, to a British mother and a Maltese father in 1996. Under Maltese law, a child born out of wedlock outside of Maltese territory can only obtain nationality if the mother is Maltese.  The applicant was able to obtain British citizenship, but claims that his right to potentially have a relationship with his father has been violated due to gender discrimination in Maltese nationality law which did not allow him to acquire his father’s citizenship.  The judges considered that the applicant’s right to a private life had been violated due to discrimination in the law.  They voted six to one that there had been a violation of Article 14;

“The enjoyment of the rights and freedoms set forth in (the) Convention shall be secured without discrimination on an ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status.’’

In conjunction with Article 8,

‘’Everyone has the right to respect for his private life, his home and his correspondence.’’

What could this mean?

In this case, discrimination in nationality law has been seen to violate Article 14 in conjunction with Article 8.  Article 8 is a dynamic provision that is continually undergoing renewed interpretation, and now the possibility is that citizenship cases could more readily be brought in and tested under this article.  What is significant about this judgement is that lack of access to nationality can be seen to violate Article 8.  It is implied that not granting nationality could violate the article ‘’because of its impact on the private live of an individual, which concept is wide enough to embrace aspects of a person’s social identity.’’  This implies that denying Genovese’s access to Maltese citizenship is impacting on him exercising his full social identity.  Hence, this is violating his right to a private life, which ultimately is a violation of Article 8.  

What does this mean for other cases regarding nationality that may not involve discriminatory nationality laws?  The applicant in this case had another nationality and therefore it would be difficult to argue that he could not fully exercise his right to a social identity.   However, if an individual is stateless, would that mean that there exists complete violation of their social identity, regardless of whether there was discrimination in the state’s law?   Would citizenship cases of stateless individuals therefore be seen to independently violate Article 8 and be brought to the court on that basis, without also requiring the applicant to invoke article 14?  Although the ambiguity surrounding this relevant paragraph in the judgement does not allow it to explicitly state that denial of citizenship is a violation of Article 8, the door appears to have been eased open.

Zahra Albarazi, MENA Project Coordinator, Statelessness Programme