Statelessness on the agenda in Strasbourg, and Tilburg represented in force!

It is difficult to select a single highlight from my trip to Strasbourg this week. Hearing different UNHCR staff members speak with confidence about the campaign to end statelessness by 2024, which will be officially launched next month? Or hearing the support expressed by the Council of Europe Commissioner for Human Rights for the efforts of the European Network on Statelessness (ENS) to help raise awareness of and address statelessness in the region? Or speaking on behalf of ENS at a hearing of the Council of Europe Parliamentary Assembly Committees on Asylum and Migration and on Legal affairs and Human Rights about ‘Eliminating Statelessness in Europe’? Or looking out from my position on this panel to see so many familiar faces in the observer seats as ENS members turned out in force to attend the hearing? Or holding a hard copy of the latest ENS publication in my hands – a report on preventing childhood statelessness in Europe that was prepared by the Statelessness Programme in Tilburg, with input from ENS members around the region? Or hearing about new developments and initiatives on statelessness in countries from Italy to Latvia and from the UK to Slovakia? Or looking ahead to the further campaign work of ENS this year, including an online petition for the protection of stateless people in Europe that will be launched in May? Or seeing the reaction (a mixture of empathy and incredulity) of a conference room full of people to the situation of a stateless Tilburg University student when we screened a short film that we helped to produce? Or joining colleagues who are fast becoming friends in enjoying a hearty meal and easy conversation at the end of long days of meetings and in-depth discussions on things like the prospects for EU engagement or strategic litigation on statelessness?

Actually, if I had to pick just one highlight, it would probably (selfishly) be this: posing in the cheesy photo-area in the Palais de l’Europe with the fabulous Valeria Cherednichenko and Caia Vlieks!

Tilburg talents

Valeria is an alumnus of Tilburg Law School who did an internship with the Statelessness Programme while she was studying for her masters in international human rights law and wrote her Masters’ thesis on statelessness. Determined to pursue the issue further when she left Tilburg, she secured a PhD position at Carlos III University in Madrid and set out to research into Spain’s policy and practice on statelessness. Now, Valeria is about to embark on a brand new challenge as a consultant with UNHCR’s office in Brussels to help support statelessness activities around the region in the coming months. Valeria was in Strasbourg to get a head start on this new job (which she officially starts later in the month) by participating in the series of statelessness activities that were being organised there this week.

Caia is a current student of Tilburg Law School, where she will soon complete the Research Masters programme. She also interned with us at the Statelessness Programme and wrote her Masters’ dissertation on whether an obligation to determine statelessness can be distilled from the European Convention of Human Rights. This piece of research – which was incredibly well executed – was identified as a potential resource for discussions that were being initiated within the European Network on Statelessness about the prospects for strategic litigation on statelessness in the region. Caia was commissioned to draft a discussion paper based on her study of the case law of the European Court of Human Rights and was invited to Strasbourg to present it to the lawyers and legal aid organisations which were convened to discuss cooperation on strategic litigation (one of the many meetings crammed into this exciting week).

Strasbourg and statelessness

Since the mid-1990s, when the dissolution of the USSR and of Yugoslavia left hundreds of thousands of people in Europe without a nationality, statelessness has been on and off the agenda of the Council of Europe and of its institutions in Strasbourg. In 1997, a dedicated regional treaty providing, among other things, safeguards to ensure the enjoyment of the right to a nationality was adopted: the European Convention on Nationality. A series of conferences on nationality was convened, with legal experts and government policy makers invited to discuss the challenges faced in this field. In 2006, another regional treaty was passed, this one dealing specifically with the avoidance of statelessness in the context of state succession. Various relevant recommendations have been passed by the Committee of Ministers and the European Court of Human Rights has been seized with a number of cases in which the denial of nationality or the impact of statelessness was addressed. A new chapter was added this week, with the adoptionof a further resolution and recommendation on access to nationality.

The debate on this issue by the Parliamentary Assembly of the Council of Europe (PACE) was preceded by a special hearing, convened in collaboration with UNHCR, to consider the question of ‘Eliminating Statelessness in Europe’. This session was designed to offer members of the PACE committees on Asylum and Migration and on Legal Affairs and Human Rights a chance to hear or raise themselves some fresh ideas about how Europe can tackle the pressing challenge of finding solutions for the over 600,000 stateless people in the region today. Offering food for thought were a trio of presenters who each brought a different perspective to the issue: UNHCR, a member state government (Italy) and civil society. Representing the latter of these and speaking on behalf of ENS, was me. I had the pleasure to present a newly issued ENS report that discusses the prevention of childhoodstatelessness in Europe. The Statelessness Programme in Tilburg was commissioned by ENS to draft this report with input from ENS members from around the region, and it highlights issues, gaps and good practices before setting out of an agenda for action. The overall message, which seemed to resonate well with the Parliamentarians who had gathered for the hearing: it is undesirable, unnecessary and simply unacceptable that children are still being born stateless in Europe today.  

Packing in events

Taking advantage of the occasion of this special hearing on statelessness, ENS lined-up a series of other meetings and events this week. The first ever Annual General Conference was held on Monday – an important milestone in the development of this civil society coalition which was formed less than two years ago but had already attracted over 80 members spread across over 30 countries. Here we shared plans for activities to support the current ENS campaign to strengthen the protection of stateless people in Europe, including by pushing for the establishment of Statelessness Determination Procedures to ensure access to a protection status. We also considered the future ambitions and work of ENS, including ideas around new campaign issues. On Tuesday, ENS and UNHCR convened a joint conference entitled ‘Stateless but not rightless’, which was also open to other stakeholders and drew approximately 100 participants in total. There we held in-depth panel discussions about how the Council of Europe institutions – in particular the Court (but also the Social Rights Committee) can contribute to a better response to statelessness in the region. A clear highlight here was the eloquent and rousing keynote address by Commissioner for Human Rights NilsMuiznieks who reinforced the message that statelessness in Europe is solvableand that it is imperative that the existing problems not be passed to a newgeneration. Wednesday was filled with a lively debate about strategic litigation opportunities and challenges, marking the beginning of the formulation of a strategy for ENS engagement on this – before the PACE hearing kicked off and the Assembly provided the icing on the cake of a successful week by adopting a resolution and recommendation packed with important messages about states’ responsibilities to address statelessness.  

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

An unforgettable experience working on statelessness with UNHCR sponsored by the Statelessness Programme

In March 2013, I started an internship that I had long awaited with much excitement. Through the International Statelessness Internship Award I had the opportunity to intern at the Statelessness Unit of the UNHCR Regional Coordinator’s Office in Bangkok and work on an assignment I found interesting, challenging, and intellectually stimulating. This blog is to share my internship experiences with students and potential recipients of the International Statelessness Internship Award.

I arrived in Bangkok one week before the start date of my internship to settle down and to discover the city. After a week of acclimatizing myself to a new environment I was excited to start work. On my first day, I attended a regional team meeting where everyone gives an update on what they are working on, those who went on mission share their findings, and developments and approaches to deal with specific situations in the region were discussed. After the regional team meeting, I sat down to talk about my terms of reference and which assignment would be best to start with the other members of the statelessness team Nick Oakeshott (Regional Protection Officer(Statelessness)) and Bongkot Napaumporn (Protection Associate (Statelessness)).

The main objective of my internship was to conduct a legal analysis of the nationality laws of Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Viet Nam (ASEAN member states). This study aimed to provide an explanatory analysis of nationality laws and possible gaps, and identifying good practices in the region relating to the prevention, reduction, and protection of stateless people that can set an example for other member states on how to tackle statelessness-related issues. The underlying reason for this study was based on recommendations to reduce and prevent statelessness in the migration context made by the participants at  the Regional Workshop on Statelessness and the Rights of Women and Children held jointly between ASEAN Intergovernmental Commission on Human Rights (known as “AICHR”)and UNHCR.[1]

During the first week I was mainly occupied with background reading on the history of migration flows in Southeast Asia to obtain a better understanding of the situation and challenges in this region in relation to statelessness. I also read several studies on nationality laws and the main causes of statelessness in ASEAN member states that had already been completed in 2010 and 2011.[2]

Besides that, I also participated in other activities during the first week. For instance, I was invited to attend a regional policy meeting where staff at the senior level discussed key topics to further develop regional policy on protection issues, and to ensure that UNHCR policies at regional and national level are in line with global objectives. As a note taker it was a great opportunity to learn more about statelessness, maritime movements, Refugee Status Determination, and temporary protection in relation to certain groups of people in South East Asia.

During the 2^nd/ 3^rd week of March, I took the preliminary steps towards analysis of the nationality laws. I compiled a bibliography of all (legal) sources and verified whether the set of nationality laws and implementing regulations available on Refworld (UNHCR’s research tool available at www.refworld.org) were complete and up-to-date. Furthermore, I started writing a methodology and a plan of action for this study.

After feedback from my supervisors on the methodology, I started to analyze nationality laws. The nationality laws were assessed as follows: 

First, the relevant national provisions that relate to international standards to prevent and reduce statelessness were identified and further described by setting out the substantive and procedural requirements. Second, the substantial and procedural requirements listed in the relevant national provisions and the relevant international standards were compared in order to verify whether the national provision complies with the relevant international norm. Third, the international standards that are binding on the relevant ASEAN Member State were stressed, taking into account treaty obligations, and any reservations and declarations that a state has made, as well as norms of customary international law.

I received feedback from my supervisors after every country analysis which was always a great learning moment, especially in terms of how to explain in a clear and systematic way why a specific provision in a nationality law can cause statelessness. Interpreting nationality laws from ASEAN Member States, looking up relevant information provided through (non) treaty based monitoring mechanisms and other sources gave me a better understanding of the challenges that are faced in the region in relation to statelessness. Due to the fact that almost none of the ASEAN Member States are Parties to the Statelessness Conventions and are therefore not bound by them, the analysis included consideration of whetehr or not a State would hypothetically be in line with the Statelessness Conventions, as well as on the statelessness related international standards that are binding on the relevant ASEAN Member State (e.g. Article 7 of the Convention on the Rights of the Child and Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women). 

At the end of July, I started with the write up of the report. I noticed that the more I looked into the nationality laws, the more I came across new interesting issues relating to statelessness. Whilst writing a report of my findings, I realized that statelessness can in theory be caused in countless ways. Besides that, it should also be noted that a gap exists in law and practice which leads to new cases of statelessness that cannot be derived from analyzing the nationality laws on its own.

Looking back at close to 6 months interning at the Regional Coordinator’s Office, the first thought that comes into mind is that it has truly been a valuable experience. I first took interest in statelessness - the how and what, when I was interning for nearly a year with the Statelessness Programme where I looked into statelessness in the Netherlands. It comes with no surprise that I was thrilled to receive the Internship Award and get an opportunity to learn more about statelessness in South East Asia, a region where relatively more people are affected by this phenomenon compared to the Netherlands. Not only have I learned more about statelessness in South East Asia, I have also been able to put knowledge into practice that I gained by participating in the Statelessness Summer Course and a bachelor course on nationality, statelessness and human rights offered at Tilburg University.

Most importantly, with this internship I have gained a better understanding of how statelessness fits in the field of human rights, the relevance of (non) treaty based monitoring mechanism and the way UNHCR implements its mandate to prevent, protect and reduce (and hopefully eradicate) statelessness by, among others, gathering information on statelessness, promoting accession to the Statelessness Conventions, dealing with cases of stateless persons and supporting legislative changes/ improvement to existing procedures to help stateless people acquire a nationality.

Furthermore, during this internship I had the chance to look into a case of a stateless person and to sit in several UN security debriefings and I was fortunate enough to attend events aimed at promoting awareness for international human rights. Some of these events were for instance; lectures given by experts working in the field of human rights and professors on different human rights related issues, a red carpet premiere of the ‘Girl Rising’ movie which tells the stories of nine brave girls from around the globe who have had to overcome hardship in their lives, the Refugee Film Festival in conjunction with World Refugee Day to shed light on some of the hardships encountered by families torn apart by war.

I would encourage future recipients of the International Statelessness Internship Award not to only focus on their own project but also try and get involved in the day-to-day statelessness work and participate in other events. I would, for instance, recommend integrating in your terms of reference to assist the Statelessness Officer(s) in their daily practices one day a week besides working on your own project. This would not only give more variation in your own tasks but it would be an opportunity to get to know the organization better and to find out if you are keen on working at UNHCR in the future.

Accommodation and living in Thailand:

Before flying out to Bangkok, I looked into apartments that are for rent in areas near the office and made an appointment with a reliable agent to view one of the apartments that she rented out. When I was in Bangkok I realized that it is easy to find apartments and condos for rent so there is no need to look into housing arrangements too much prior to arrival. I decided to stay in a hotel for a week and look for accommodation in the meantime. The average cost of renting an apartment varies greatly, depending what your requirements are.

Funding received from the Statelessness Programme is sufficient to cover accommodation and living in Bangkok. Accommodation can easily be found between 200 to 300 euros if you live outside the city center and the use of public transport (BTS) is very convenient. It is also possible to find shared apartments. It is very common to find apartments and studios without a kitchen since it is convenient and cheaper to buy  food from of the many food stalls on the street for less than 2 euros a meal. Besides that many restaurants can be found that serve delicious dishes from all regions of the world. I opted to look for an apartment within walking distance from the office (downtown Bangkok) and preferred to have a kitchen. These factors have to be taken into consideration because your monthly expenses will increase and you may need some of your own savings.

Bangkok is an fantastic city to live in because it is a blend of Asian and Western traditions. There is always something to do, people are very sociable and I personally like the culture, the norms and values. Interning at UNHCR also means being introduced to a big international community, many interns and expats are working and living in Bangkok and it is easy to meet them and exchange experiences. I would recommend to save some money and plan trips and undertake activities during weekends such as exploring the city, visiting temples, going to the beach or one of the islands, visiting national parks, going out with colleagues, having drinks on one of the many rooftop bars and enjoy the stunning view over the city, or seeing a live game of ‘Muay Thai’ (a combat sport) and horse races in the heart of Bangkok.

 

 

To conclude, I am very grateful to Laura van Waas for giving me the opportunity to enhance my knowledge on statelessness, and to the other members of the Regional Office’s statelessness team, Nick Oakeshott and Bongkot Napaumporn for taking time to share experiences about statelessness related issues in South East Asia and providing elaborate feedback on my work throughout the entire internship. I have learned so much more than I initially imagined before starting the internship. I truly value this experience, that has given me so much insight into a field of study I have become so passionate about and that I couldn’t have necessarily learned in a classroom setting.

I am excited to be back in Tilburg and to complete my masters in International and Human Rights Law and I am thrilled to be interning again at the Statelessness Programme and to learn more about statelessness by interviewing stateless persons in the Netherlands.

Sangita Jaghai, Recipient of the first Statelessness Programme International Internship Award

 

---

[1] UN High Commissioner for Refugees (UNHCR), UN High Commissioner for Refugees and ASEAN Intergovernmental Commission on Human Rights, Report of the ASEAN Regional Workshop on Statelessness and the Rights of Women and Children , 19 November 2011, available at: http://www.refworld.org/docid/50f674c42.html [accessed 21 October 2013].

[2] See for instance, UN High Commissioner for Refugees (UNHCR), Regional Expert Roundtable on Good Practices for the Identification, Prevention and Reduction of Statelessness and the Protection of Stateless Persons in South East Asia, 2 March 2011, available at: http://www.refworld.org/docid/4d6e09932.html [accessed 21 October 2013].

Europe must not allow its children to grow up without a nationality

How do you explain statelessness to a child?

Yes, you were born here. And yes, mummy comes from here. And yes, daddy comes from here. And yes, you speak our language. And yes, you celebrate the same festivals as us. And yes, you look just like all the other children who live and play in your neighbourhood.

But no, you are not really one of us. You are not officially a member of our community. You are an outsider. You are an alien. And no, there is also no other place for you to belong. You are stateless.

That’s a tricky thing to explain, but harder still to justify. It’s a sad fact then, that of the 10 million plus stateless people worldwide, it is estimated that half are children: born and now fast growing up without a nationality. How is this even possible when as early as 1930, governments were drawing up international agreements in order to ensure that no child is left stateless? How is this possible when many decades ago, childhood statelessness was already identified as an entirely avoidable problem and the necessary preventative measures were already known (e.g. the norms found in the 1961 Convention on the Reduction of Statelessness)? And perhaps most intriguingly, why has ‘even’ Europe not succeeded in staving off this problem, despite additional regional agreements that guarantee children’s right to a nationality (e.g. the norms found in the 1997 European Convention on Nationality)?  

The truth, like it or not, is that Europe is still a ‘producer’ of statelessness. Day to day, this may no longer be on the same alarming scale as when statelessness was suddenly created by the redrawing of borders and disintegration of states in the Europe of the 1990s. Nor may it have the same shocking and condemnable undercurrent as when statelessness resulted from policies of mass denationalization in the Europe of the 1930s. Yet I cannot help but be both alarmed and shocked by the fact that it is possible to be born stateless in Europe today. Indeed, this is a significant concern both in countries which already have large stateless populations – such as Latvia and Estonia – as well as where statelessness is a relatively marginal issue. A recent ENS blog highlighted just one of the many thousands of tragic stories of people born without, and growing without, a nationality. And to offer my own country by way of example: of the approx. 2000 people who are listed in the Dutch civil registry as ‘stateless’, it is astounding to discover that 1400 (or 70%) of these individuals were born in the Netherlands.

In order to better understand how, why and where things are going wrong, the European Network on Statelessness took the initiative to compile a report on Preventing Childhood Statelessness in Europe. It draws on existing comparative nationality law research conducted by the European Union Democracy Observatory on Citizenship, existing literature on problems of implementation of nationality laws and information provided by ENS members. This report looks at how Europe is performing with respect to international and regional standards in the fields of human rights, child rights and statelessness all protect the child’s right to acquire a nationality. In light of the overall goal of preventing childhood statelessness it highlights the main issues, gaps and good practices. It is launched this week, on the eve of an important series of events that will take place in Strasbourg from 7-9 April and which will focus on the challenge of addressing statelessness in Europe. The hope is that this will inspire further recognition and understanding of, and ultimately more effective law and policy to combat, the problem of childhood statelessness in Europe.

The report concludes with a series of important recommendations:

1. Ensure that all otherwise stateless children born on the territory of a European state acquire a nationality promptly.

2. Address the inadequacy of safeguards to prevent statelessness for children born on the territory as a matter of priority in those countries with large, existing stateless populations.

3. Ensure that restrictions on the conferral of nationality jus sanguinis to children born abroad do not lead to statelessness.

4. Abolish any difference in treatment in nationality laws with regards to children born out of wedlock.

5. Simplify procedures for birth registration and confirmation of nationality in countries with a problem of intergenerational lack of documentation.

6. Review nationality laws to identify and revise any provisions that could lead to loss of nationality of children, leaving them stateless.

Click here to access the ENS report ‘Preventing Childhood Statelessness in Europe: Issues, Gaps and Good Practices’.

Dr Laura van Waas, Senior Researcher and Manager of the Statelessness Programme, Tilburg University. 

Please note that this blog post originally appeared on the website of the European Network on Statelessness, accessible via www.statelessness.eu. 

Every child belongs

When raising awareness of the importance of birth registration, organisations like Plan and UNICEF have done a good job of devising compelling slogans, like “Count every child” and “All children deserve to celebrate their birthday”. The message is that every child has the right to recognition of their existence and proof of the facts of their birth as provided through birth registration. This can be critically important for the enjoyment of all sorts of child rights, from protection against early marriage to access to childhood immunisations. These kinds of slogans have the power to portray the importance of what is really a rather dry and technical administrative act to a wide audience in just a few words. Impressive.

Last week I was in Geneva to help teach a specialised short course on Statelessness and Child Rights – a collaborative project of the Statelessness Programme of Tilburg University, UNHCR and UNICEF, piloted for the first time. While I was there, I spent quite a bit of time pondering whether and how we could adopt a similar technique to that above to communicate core messages around statelessness. Just as the human rights language “every child has the right to birth registration” has been translated into the demand to “Count every child”, can we turn the “right of every child to acquire a nationality” into a more meaningful call to action?

Unfortunately, many of those who work on statelessness – including myself – are lawyers by training, rather than communications or public information experts. Yet, as governments, UNHCR, other UN agencies and civil society groups start to engage on the issue more actively, knowledge of statelessness is quickly spreading beyond the lawyerly circles and other expertise is being brought in to operationalise policies to fight statelessness. So, no doubt we will start to see the emergence of increasingly sophisticated ‘marketing’ techniques and hopefully a simplification of the language around statelessness. Already, we see a move away from the message – sadly all too common in older publications – that “statelessness is a highly complex legal issue”. Because, quite frankly, birth registration is a highly complex legal, social, economic and sometimes political issue, but that’s not a particularly helpful way to introduce it to a new audience, which is why Plan and UNICEF have found a different approach.

The challenge then, is to work harder to explain statelessness, or at the very least the importance of fighting statelessness, in a way that any audience could understand and internalise it. This is a vital first step, because without some sense of what the problem is – and that it is a problem at all – no-one will be very motivated to invest the time to learn more about it or take action to address it. For this, we need to take a step back from the legal complexity and look at it from a more down to earth perspective.

One fact that I find particularly compelling and which was emphasised throughout the course on Statelessness and Child Rights is that, in any given year, the vast majority of new cases of statelessness are amongst children. Stateless parents are often powerless to prevent their plight from being transmitted to the next generation. If we are ever to crack this problem and realise the right to a nationality for all, we must stop this senseless spread of statelessness.

What’s more: children affected by statelessness did not choose to be outsiders. Nor do they somehow exist as free radicals without any attachments to a family, a community, a place or a home. They have the same connections as anyone else. They have a country. They belong. Yet their government is letting them down, right from the start, by failing to ensure that this belonging translates into a nationality – a legal bond which formalises their membership of the community and provides protection, rights, empowerment, a sense of acceptance and inclusion. As momentum grows to address statelessness and people from an increasingly diverse range of backgrounds and disciplines, with different skills to offer, join the cause, I hope that there will be a greater effort to distil these types of simple messages and that someone with the know-how to do so will translate them into clever and compelling slogans to help spread the word.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

[This blog was originally drafted for and posted on the website of the European Network on Statelessness, see www.statelessness.eu] 

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.