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: 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

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

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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GUEST POST: The Compatibility of Nationality Laws in Vietnam and Relevant International Standards

Strengths in Vietnam’s Nationality Laws

Due to a lack of ratification of international treaties relating to nationality laws, Vietnam has few obligations under international law. There are three situations in which Vietnam meets, or exceeds, such obligations.

1. Children born in Vietnam, if otherwise stateless

The Law on Vietnamese Nationality (LVN) regarding children born in Vietnam are certainly flawed. Nevertheless, they ultimately safeguard against statelessness. That is, the LVN does allow for a situation to arise where a child is rendered stateless: where a child is born in Vietnam and has one or two parents who are not stateless, but the child is for some reason unable to obtain their parent’s nationality, then the child will be stateless. However, LVN expresses as a general principle the right to a nationality for a child born in Vietnam if otherwise stateless (Article 8), and thus appears to provide protection against statelessness that is consistent with Vietnam’s obligations under CRC. It should be noted that the extra complexity in having to read these two sections together weakens the ultimate effectiveness of the safeguard and incorporating the words ‘unless otherwise stateless’ into the active provisions of LVN is recommended to provide stronger protection against statelessness.

2.      Renunciation of nationality

Under LVN, Vietnamese nationality can be renounced upon proof that the citizen is applying for foreign nationality. There is no requirement that the application for a foreign nationality is successful. Consequently, if a citizen renounces Vietnamese citizenship but fails to obtain foreign nationality, then they will become stateless.  Nevertheless, in this situation, Vietnamese citizenship will then be restored. Therefore, the LVN ultimately provides a sufficient safeguarded against continuing statelessness, despite the unusual situation where a person momentarily slips into a state of statelessness. However, it is likely this is the only possible solution; if the LVN provided that effective renunciation would depend on the application for foreign citizenship being successful, then the application may never be allowed, as the second nationality might only be awarded once the original nationality is fully renounced. Therefore, Vietnam cannot be too heavily criticised for its protection against statelessness where citizens seek to renounce nationality. Regardless, Vietnam has not breached international obligations, as they are not a party to the 1961 Convention on the Reduction of Statelessness (CRS).

3.      Racial Discrimination

LVN does not contain any racial discrimination and Vietnam is in compliance with international norms and obligations under CERD, CRS, CRC and UDHR.

Weaknesses in Vietnam’s Nationality Laws

1.      Acquisition of Nationality by a Child Born Abroad, to a Parent who is a Vietnamese National, if otherwise Stateless

Under Article 16, a child born outside Vietnamese territory will receive Vietnamese nationality if one parent is a Vietnamese citizens and the other is stateless at the time of his/her birth. Alternatively, if the child’s mother is a Vietnamese national and the father is unknown, then a child born abroad will receive Vietnamese nationality. However, the LVN fails to account for a situation where one parent is Vietnamese, and the other parent has a nationality, but the child is for some reason unable to obtain the second nationality. In this situation, the child could not get Vietnamese nationality and would be rendered stateless. Therefore, the LVN does not appear to be in line with Vietnam’s obligations under the CRC, or the CRS.

2.      Acquisition of Nationality by Foundlings

The LVN regarding foundlings is in breach of Vietnam’s obligations under CRC. Whilst newborns and children found in Vietnamese territory whose parents are unknown are given Vietnamese nationality, a child could lose their Vietnamese nationality because their parent is discovered, even though they might not be eligible for their parent’s nationality. Thus, the child would be left stateless.

3.      Loss and Deprivation of Nationality

The LVN for loss and deprivation of nationality meets obligations under the Universal Declaration of Human Rights (UDHR); loss/deprivation of nationality should not be arbitrary under the law as the grounds for loss and deprivation are clearly and systematically set out (Article 26 and 31 of LVN). However, the laws are not inline with international norms under the CRS. LVN states grounds for loss and deprivation (Article 23(1)(f), LVN), but fails to make loss/deprivation dependent on possession/acquisition of another nationality, thus LVN does not safeguard against statelessness. LVN only protects against statelessness arising from loss of nationality due to renunciation, as outlined above, and therefore allows for a number of ways for alternative methods of loss/deprivation to result in statelessness.

4.      Gender Discrimination

LVN is largely inline with Vietnam’s international obligations under CEDAW: men and women have equal rights to nationality, the nationality of the woman shall not be altered according to marriage, and both men and women equal rights with regards to the nationality of their children. However, gender discrimination is present. Article 16(1) does not allow for a child to receive Vietnamese nationality in situation where the mother is unknown and the father is a Vietnamese national. Thus, the father does not have equal rights with respect to the nationality of their children, and it could be argued Vietnam is not complying with its international obligation.

5.      Facilitated Naturalisation of Stateless Persons

Prima facie, LVN is consistent with Vietnam’s obligations under UDHR to facilitate naturalisation of stateless persons: stateless persons can naturalise, and stateless persons can naturalise without personal identification papers when they have resided in the Vietnamese territory for 20 years or more. However, on closer inspection, this “facilitation” is flawed for two reasons. Firstly, it could be argued that 20 years is too long a time to have to reside in Vietnam to be eligible for facilitated naturalization,although it is unclear whether a specific international norm governs this time period. Secondly, the prescribed 20-year residency time period must have been met at the time the law entered into force. Therefore, naturalization under the LVN will only ever be beneficial for a particular group and not for cases of statelessness arising after the law’s entry into force.

Conclusion

There are a number of gaps in the Law on Vietnamese Nationality that fail to provide sufficient protection against statelessness. Particularly concerning are the provisions in clear breach of Vietnam’s obligations under CRC. Laws relating to loss and deprivation are also troubling; as Vietnam is not bound by CRS, it is recommended that they ratify the convention and implement greater protection against statelessness. Furthermore, renewed consideration should be given to the period of 20 years for facilitated naturalization of stateless persons. 

Magda Hughes, Student of the course 'Nationality, Statelessness and Human Rights' offered by the Statelessness Programme at Tilburg University

GUEST POST: Statelessness Prevention in Indonesia - Strengthening the Nationality Legislation

Statelessness remains a global problem which is in need of a global solution. One way in which countries can contribute to this challenge is by developing their nationality legislation in such a way that it contains safeguards against statelessness. In this respect, Indonesia is an interesting example, as in 2006 new legislation on nationality was passed, which includes certain of such safeguards. As explained in the law itself, the previous legislation needed replacement, since it “was philosophically, juridically, and sociologically no longer compatible to the development of the people and the civic administration of the Republic of Indonesia”. The question which immediately comes to mind is whether Indonesia’s nationality legislation is completely attuned to the current demands in regards to statelessness prevention or that it is in need of further amendment. Therefore, it is insightful to consider the main positive and negative aspects of Indonesian nationality legislation in regards to the prevention of statelessness.

The main positive aspects of Indonesian nationality legislation can primarily be found in the inclusion of three principles, namely, ius sanguinis, ius soli, and non-discrimination. When considering the first two principles, it must be understood that persons born from Indonesian parents and those born on Indonesian territory are considered to be Indonesian citizens. However, it must be understood that the principle of ius soli does not apply in all cases; it applies to foundlings, children born from parents with undetermined citizenship, children born from parents with undetermined whereabouts and children from stateless parents. Nevertheless, by recognising both principles instead of one, Indonesian legislation prevents the previously mentioned groups from ending up without having a nationality and thus provides a safeguard against statelessness in these cases – although some gaps remain. Furthermore, the legislation acts against discrimination. Remarkable is however, that the legislation does not include specific provisions which state that discrimination must be excluded from the processes of acquiring, changing, renouncing, or passing on nationality. Rather, the general explanatory part of the legislation acknowledges the principle of non-discrimination and one can find provisions which result in persons not being discriminated against on for instance the basis of gender. Such provisions include for example the right of women to pass their nationality on to their children. As a result, statelessness caused by gender discrimination is prevented. Important to consider is that Indonesia hereby acts in accordance with its international obligations under the 1966 International Covenant on Civil and Political Rights (“ICCPR”) and the 1979 Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). But perhaps even more significant is that Indonesia hereby acts in accordance with international norms which are not ratified, such as the 1961 Convention on the Reduction of Statelessness (“CRS”) and Article 7 of the 1989 Convention on the Rights of the Child (“CRC”). In this respect, Indonesia may be understood to go beyond its international obligations and its legislation may appear to be in line with the international standards regarding statelessness prevention.

However, Indonesia’s nationality legislation has negative aspects as well. Especially the fact that Indonesia has not yet ratified the CRS must be understood as a negative aspect; it suggests that the country does not intend to act in accordance with all the Convention’s provisions, and this raises serious questions about Indonesia’s willingness to prevent statelessness. When taking a closer look at the legislation, one indeed finds aspects which are not in line with this Convention and Indonesia’s other international obligations, such as the 2006 Convention on the Rights of Persons with Disabilities, the ICCPR, and the CRC. Especially, but not exclusively, in respect to the naturalization procedure amendments are wished for; the current legal requirements for naturalization might make it problematic for some persons who are already stateless to acquire a nationality, thereby prolonging cases of statelessness. The requirements for naturalization for instance result in discrimination on the basis of religion due to the fact that one must recognise Pancasila, the belief in One God, and in discrimination of persons with disabilities, as applicants must be “sound in health and mind”. Moreover, the procedure requires persons to relinquish any other nationality, as Indonesia does not recognize double nationality. This requirement must be understood to have the possibility to exclude stateless persons and refugees from gaining Indonesian nationality, as they are often unable to provide proof of renunciation of nationality or to give up their nationality.

           

Thus, while Indonesia’s current nationality legislation can definitely be understood to be a step in the right direction, since it contains certain safeguards against statelessness, it is evident that the legislation is in need of amendment in order to better align the nationality laws with Indonesia’s international obligations and the current expectations regarding the prevention of statelessness. And perhaps the first next step should be one of the biggest ones a nation can take: acceding to the 1961 CRS. 

Sylvia Hazenbroek, Student of the course 'Nationality, Statelessness and Human Rights' offered by the Statelessness Programme at Tilburg University

GUEST POST: Myanmar - State of Statelessness

Nationality is a legal bond between a state, while statelessness refers to the condition of an individual who is not considered as a national by any state.

Myanmar (Burma) has one of the world’s largest populations of stateless people and this is a massive problem because statelessness has a terrible impact on individuals by depriving them of enjoyment of the full range human rights, i.e. individuals are generally blocked from obtaining employment, education, health care services and so forth. This problem of statelessness in Myanmar (Burma) and in the rest part of the world emerges due discriminatory and inadequate nationality laws. The leading approach in the fight against statelessness is ratification and implementation of various international norms related with nationality and statelessness provided by United Nations and other international organizations, e.g. Convention on the Reduction of Statelessness and Convention Relating to the Status of Stateless Persons, as well as others such as European Convention on Nationality or Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws.

The legal analysis of Myanmar’s (Burma) domestic nationality law enables to conclude that this county is very distant from the international standards in nationality field, because it has not ratified either of aforementioned statelessness Conventions which are vital to the battle against statelessness and which regulate many severely vulnerable areas.

Myanmar (Burma) has only acceded to the Convention on the Rights of the Child and Convention on the Elimination of All Forms of Discrimination against Women. However, norms of these Conventions are very laconic and regulate just very specific aspects of statelessness problem, thus, providing far less benefit than the ratification of, for instance, Convention on the Reduction of Statelessness would. What is more, Myanmar (Burma) even fails to implement those several international obligations which it has undertaken: Article 7 of Convention on the Rights of the Child prescribes that a child has the right to acquire a nationality and States Parties are obliged to ensure the implementation of this right under the relevant international instruments, in particular where the child would otherwise be stateless. However, Myanmar (Burma) has not adopted any measures or mechanisms for this.

So, if Myanmar (Burma) fails to implement its own obligations, it is meaningless to expect that this country could take into account other international principles and standards which are not applicable within its territory. The legal analysis confirms that. For instance, Burma’s Citizenship Law does not ensure nationality under Article 1 and 4 of Convention on the Reduction of Statelessness to a child born outside or inside the country, if otherwise stateless, and does not at all regulate the question of abandoned children under Article 2 of Convention on the Reduction of Statelessness or Article 14 of Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws. Sadly, Burma’s Citizenship Law does not provide facilitated naturalization for stateless persons as it is required by Article 32 of Convention Relating to the Status of Stateless Persons, as well. The possibility to naturalize as a citizen of Myanmar (Burma) is not even vested for foreigners.

The worst part of the Myanmar’s (Burma) nationality laws is racial discrimination. According to Burma’s Citizenship Law provisions, the citizenship of Myanmar (Burma) is granted only to certain ethnic groups that have settled within the State in a certain period. Moreover, the Council of State may decide independently whether to grant citizenship to any ethnic group or not. These provisions apparently contradict international norms which forbid  to deprive any person or group of persons of nationality on racial, ethnic, religious or political grounds.

Notwithstanding, there are aspects in which Myanmar (Burma) does better. For instance, its nationality laws provide some safeguards against statelessness in the context of loss of nationality. One of the most significant norms is Article 15(a) which ensures that citizen would not automatically lose his citizenship merely by marriage to a foreigner. This norm accords with international standard that any change in personal status (like marriage) should not affect a person’s nationality and if it nonetheless does, such change should be conditional upon not rendering the person stateless. A noticeable achievement of Myanmar’s (Burma) nationality law is non gender-sensitive norms, as well.

Taking everything into consideration, it is obvious that Myanmar’s (Burma) nationality law lacks attention to international principles and standards related with nationality and statelessness and is more incompatible with them than consistent. Therefore, United Nations and other international organizations have to work with Myanmar’s (Burma) government and persuade it to ratify more international Conventions on nationality and statelessness. 

Simante Tomkeviciute, Student of the course 'Nationality, Statelessness and Human Rights' offered by the Statelessness Programme at Tilburg University

Tunisia: Another step towards gender equality

Tunisia is the second country in the MENA region after Morocco to withdraw all reservations to CEDAW. Decree 103 was signed by the President of the Transitional Government Fuad Almabza on the 24th of October 2011 - marking another significant breakthrough for the country towards gender equality.

Tunisia signed the Convention on the Elimination of all Forms of Racial Discrimination Against Women (CEDAW) in 1985. CEDAW, often referred to as the international bill of rights for women, stipulates provisions regarding nationality in its Article 9. In the light of statelessness issues, this article is of high importance since it grants women equal rights with men with respect to the nationality of their children. This can reduce the number of cases of statelessness on a large scale given that Tunisian mothers can now pass their nationality to their children, whereas before it was almost impossible to do that without the request of the father.

Almost all states in the MENA region still maintain reservations to articles on nationality, marriage and family. The Tunisian citizenship law was amended several times in order to abolish the inequality between men and women. The first amendment came in 1993 and gave children born to Tunisian mothers and foreign fathers the right to obtain the Tunisian nationality.  This could only be initiated after the parents submit a joint written approval while the child is under the age of 19. In 2002, a further  amendment provided that a child would be given nationality based on a written request from the mother alone. This amendment was aimed at solving cases where the father passed away or disappeared, as well as the cases where the father is unknown or legally incompetent.

The last positive amendments of the Tunisian Code of Nationality took place in December 2010 through the adoption of Law n° 2010-55. The amendment abolishes and replaces article 6 of the Code of Nationality, which now reads that “the child born to a Tunisian father or Tunisian mother is considered to be Tunisian”. According to this amendment, the application procedure where the Tunisian nationality could be obtained only after the parents submit a joint written approval provided that the child is under the age of 19, is no longer required.

All of these steps ahead have been supported and in many cases pushed forward through women’s rights movements, probably one of the most active and strongest in the region. Among others, independent Tunisian women's NGOs in conjunction with research institutes and governmental organisations continue to work together in order to implement the 1995 Beijing Platform for Action, a global agreement on women's rights.

Despite the fact that Tunisia is a leader in granting women equal rights with men across the MENA region, as well as the important steps undertaken on these issues, their practical application still remains to be seen in the future.  We hope that these amendments will not only make an impact on paper, but will make a real change through their implementation, and will heed other countries to follow.

The Statelessness Programme will continue to follow these developments as part of the MENA research project.

By Valeriia Cherednichenko, Intern, Statelessness Programme, Tilburg University