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.

A very special Special

The newest edition of the Tilburg Law Review is a Special Issue dedicated in its entirety to the subject of statelessness! Over the last few years, academic interest in statelessness has increased exponentially: research projects and publications are mushrooming and a growing number of scholars from different disciplines are now studying this issue. The statelessness special issue of the Tilburg Law Review aims to capture this emerging academic debate by presenting a set of short articles that explore statelessness from diverse angles – from climate change to Corporate Social Responsibility; from microfinance schemes to human trafficking; and from surrogacy arrangements to victimology. The contributors  come from a wide range of backgrounds which include academics, civil society advocates and government officials, offering between them varied and interdisciplinary perspectives on the issue.

The special issue is also a timely contribution to wider developments in the field of statelessness. It is a celebration of the signing, in 2013, of an official agreement between Tilburg University and the Office of the United Nations High Commissioner for Refugees (UNHCR) for collaboration on research and training activities on statelessness. It contributes to the commemoration, in 2014, of the 60^th anniversary of the adoption of the first United Nations treaty dedicated to addressing statelessness, the 1954 Convention relating to the Status of Stateless Persons. And it is a sneak preview of what to expect in September 2014 when Tilburg University and UNHCR will co-host the first ever Global Forum on Statelessness in the Peace Palace in the Hague. 

Check out the 30 articles discussing a wide-range of statelessness related issues here.

What connects Tom Hanks, Osama Bin Laden and Albert Einstein?

On the 10^th of December every year, Tilburg University joins many other organisations and individuals around the world to celebrate Human Rights Day: the day on which, in 1948, the Universal Declaration on Human Rights was signed and the modern human rights era was born. A symposium is convened on campus, where a human rights topic is explored and the ‘Max van der Stoel Award’ for best dissertation in the field of human rights is presented. In 2013, the Statelessness Programme was invited to provide the substance for the Human Rights Day symposium and give the audience an insight into the lives of stateless people. Honoured to be asked and excited by the challenge of summarising the experience of statelessness just half an hour, my colleague Zahra Albarazi and I set to work and came up with the following provocative question around which to construct our presentation: “What connects Tom Hanks, Osama Bin Laden and Albert Einstein?” For those who were unable to attend the Human Rights Day event in Tilburg, here’s a brief run-down of the answer to that question… 
[Click on the youtube links to watch the short clips we showed the audience on the day]


Now, it is important to note at the outset of this blog that these three names have been put together in a single sentence for the sole purpose of explaining about the different ways in which people can become affected by statelessness. We are not by any means suggesting that they are otherwise in any way alike or share anything else in common. Nor, to be entirely accurate, are we actually implying that Tom Hanks is or was himself a stateless person. Rather, in one of his film roles, he played the stateless Victor Navorski and it is with Victor’s story that we opened the symposium.

“Currently, you are a citizen of nowhere… You don't qualify for asylum, refugee status, temporary protective status, humanitarian parole, or non-immigration work travel. You don't qualify for any of these. You are at this time simply... unacceptable.” 

In the film ‘The Terminal’, after demonstrating the demise of his country by bursting a bag of crisps with an apple (really!), this is how the Director of Customs and Border Protection (played by Stanley Tucci) explains to Victor Navorksi (played by Tom Hanks) why he is stuck at JFK Airport. The extract from the film where this happens – a fascinating, entertaining and immediately heart-wrenching two and a half minute scene – is perhaps one of the best introductions to the world of statelessness and a fantastic teaching resource. Very quickly, it (roughly) explains how the break-up of a state can leave a person stateless without them asking for it, doing anything or even knowing that it has happened. This gives an immediate insight into one of the most significant causes of statelessness globally, state succession, which has left many hundreds of thousands of people stateless – including in Europe, following the dissolution of the USSR and Yugoslavia. The same extract also provides a simple and compelling description of a stateless person: “a citizen of nowhere”, a reasonably sound summary of the international legal definition (i.e. “a person who is not considered as a national by any state under the operation of its law”). But perhaps most importantly, the Director of Customs and Border Protection’s reels off in his little speech all the forms of protection status which a non-national may qualify for in order to be allowed to enter or reside in the US before being forced to conclude that Victor Navorski does not qualify for any of them. There is no tool in his arsenal for dealing with cases like Victor’s, which is why Victor is simply left to fend for himself in the international departures lounge of JFK Airport – prohibited from entering the United States but also unable to board a plane and leave. The JFK departures lounge becomes a very apt metaphor for the real-life limbo in which many stateless people are trapped precisely because many countries do not have a special protection status for stateless people who they encounter in the migration context. While most do not live at airports, the reality is that many are considered “unacceptable” and are forced to somehow find a way to survive without being allowed to enter, reside or work in the country they are in, but also without the alternative of return or onward travel to any other country. This problem lies at the heart of the debate about and emergence of dedicated statelessness protection regimes, as seen recently for instance in the United Kingdom.  

To take the story of statelessness out of the realms of fiction, we followed the extract from the Terminal with two short video clips about Mikhail Sebastian, whose predicament was once described as “a sweaty Pacific island version of ‘The Terminal’”. Mikhail became stateless following the break-up of the USSR and has lived in the United States since 1995. In December 2011, he travelled to American Samoa for what was meant to be a short holiday, but when it came time to go home to Los Angeles, he was prevented from doing so by Immigrations and Customs Enforcement. In this video (first 2.20 minutes), Mikhail explains how he became trapped: http://www.youtube.com/watch?v=_Dol2QbNWfs.

Eventually, after more than a year stuck on the island and after significant media attention was devoted to his story, student groups mobilised on his behalf and lawyers argued his case, Mikhail was allowed to return to the United States and pick up the threads of his life there. But his statelessness remains unresolved and he continues to face all sorts of restrictions and has to deal with tiresome bureaucracy. As he explains (minute 4.15 to 5.30) in this film, Mikhail would dearly love to become a citizen and officially belong somewhere: http://www.youtube.com/watch?v=N4zELYdyXpY.

Back to the main question of the symposium: what connects Tom Hanks, Osama Bin Laden and Albert Einstein? Next up is Osama Bin Laden. A lesser-known fact about this now deceased, notorious international terrorist is that he was stripped of his Saudi Arabian citizenship in the 1990s, in response to his vocal criticism of the ruling regime, rendering him stateless. While Bin Laden’s case is unlikely to evoke concern or compassion, his story is nevertheless illustrative of another wider scenario in which statelessness emerges. Citizenship policy is, at times, used as a political tool: wielded in order to silence opposition voices or disqualify a political opponent from running for election. The latest backdrop against which such policy has emerged is that of the Arab Spring, where vocal critics of the ruling powers have become targets for denationalisation, often leading to statelessness. This 2-minute news item on Al Jazeera that we showed at the symposium illustrates the problem with the story of two Bahraini brothers who were stripped of their citizenship in late 2012: http://www.youtube.com/watch?v=jRiizGbNL24. The story of the Fairouz brothers is particularly compelling because they used to be Members of Parliament. From using their citizenship rights to the full – exercising the right to be elected and representing other citizens – they are now citizens of nowhere, stateless. There’s a lesson there about never taking your nationality for granted.

The final story of statelessness selected for our Human Rights Day symposium was introduced through the example of Albert Einstein. Einstein was stateless for five years at the end of the 19^th century, after renouncing his German nationality. Although Einstein initiated his own statelessness and it was short-lived thanks to his naturalisation as a Swiss citizen (and later also as a US national), his story is inextricably tied to the plight of the German Jews under the Nazi regime. Einstein became a refugee in the 1930s and worked tirelessly on behalf of other German Jews. The large-scale denationalisation of Jewish exiles and refugees was one of the tools used by the Nazi regime in its persecution of this population, which brings us to one of the darkest manifestations of statelessness: that caused by the deliberate, discriminatory and en masse deprivation of nationality. In spite of the prohibition of arbitrary deprivation of nationality, laid down 65 years ago in the Universal Declaration of Human Rights precisely because of the dangers inherent in the manipulation of nationality policy by those in power, instances of collective denationalisation have continued. Today, a key characteristic of a population commonly described as one of the most persecuted minorities in the world, the Rohingya, is that they were rendered stateless through arbitrary deprivation of their nationality. We used this two and a half minute video about the exhibition of a photography project on the Rohingya, by Greg Constantine, at the US Holocaust Memorial Museum in Washington DC in November 2013 to explain the story: http://www.youtube.com/watch?v=ddu5VethFu4.

This is how, through the exploitation of loose affiliations to Tom Hanks, Osama Bin Laden and Albert Einstein, we demonstrated some of the ways in which statelessness can strike – affecting different people, for different reasons, with different consequences. Given the setting of a Human Rights Day symposium, we chose to end on the screening one further short video, from a project that the Statelessness Programme was involved in: http://www.youtube.com/watch?v=qZ_Y0hW3DdA. The story of Um Chadi, who Zahra met in her home in Jordan and interviewed for a project with the Women’s Refugee Commission, says it all: if you are concerned about human rights, you should be concerned about statelessness. The human impact is real and significant.   

Laura van Waas, Senior Researcher and Manager of the Statelessness Programme

GUEST POST: The issue of statelessness in Europe put forward at a Regional Session of the European Youth Parliament in Sweden

The 3rd Eastern Regional Session of the European Youth Parliament Sweden (EYP Sweden) took place in Stockholm on 22- 24 of November 2013.

This year EYP Sweden was organising a round of Regional Sessions across Sweden. One of them was the 3rd Eastern Regional Session that I had the honour to preside. This session stood out among the others first and foremost due to its theme: “The Right to Human Rights”. The situation of Syrian Refugees, LGBTI rights, gender violence, human trafficking in the EU and other topics were discussed during the session. Moreover, it was the first time when the topic of statelessness was put forward for discussions at an EYP event. In particular, the Committee on civil liberties, justice, and home affairs I (LIBE I) were confronted with the following question: “There is a nearly universal ratification by EU Member States of the 1954 Statelessness Convention relating to the status of stateless persons (Estonia, Cyprus, Malta and Poland are yet to sign it). Despite this, there remain an estimated 700,000 stateless persons living in Europe today. Only a handful of European States have functioning statelessness determination procedures in place, thus implementing their obligations. What steps should the EU take to improve the protection of stateless persons in Europe?”

The LIBE I Committee has suggested the following responses to the question above. The Committee emphasised the importance of raising awareness about statelessness in Europe through, among others, informative courses on statelessness as part of school programmes (for example, social science and history classes in educational curricula offered to high school students within EU Member States) and through the implementation of awareness campaigns via the use of social media and public debating. The Committee members also supported the establishment of NGOs with a specific focus on statelessness through the provision of respective financial and human resources on behalf of the EU.

Furthermore, Swedish youth called for a detailed analysis of the existing statelessness determination procedures with the aim of identifying the best practices and the potential of their further application in other EU Member States. Another issue discussed, but not mentioned in the Resolution was the issue of questioning the existing Conventions on statelessness, as well as the European Convention on Nationality. Committee members even discussed the idea of adopting a new European Convention that would solely focus on statelessness in Europe.

As a Member of the EYP and a PhD student with a focus on statelessness, I am very pleased with the outcome of the session, in particular with the fact that the issue of statelessness in Europe was raised, especially taking into consideration the launch of a pan-European campaign by the European Network on Statelessness to improve the protection of stateless persons in Europe in October this year. Hopefully, the topic of statelessness will be included into the agenda of more events of the European Youth Parliament in the future.

To see the full Resolution Booklet, please click here. 

Valeriia Cherednichenko, PhD Researcher in Advanced Studies in Human Rights at Charles III University of Madrid, Spain

European Youth Parliament is a non-partisan and independent educational project which is tailored specifically to the needs of the young European citizen. Today the EYP is one of the largest European platforms for political debate, intercultural encounters, political educational work and the exchange of ideas among young people in Europe. The EYP consists of a network of more than 35 European associations and organisations in which thousands of young people are active in a voluntary capacity. The entire network organises about 200 events every year. The EYP is a programme of the Schwarzkopf Foundation (please follow the link for more information http://www.eypej.org/ ).

Stateless people in the Netherlands deserve better

To hold no nationality at all, have no passport and enjoy no right to vote anywhere: that is something special. But not unheard of. Worldwide, over 10 million people are stateless and there are also cases here in the Netherlands. For more than fifty years, the Netherlands has also recognised statelessness as something special and stateless people as having special needs. The UN Convention relating to the Status of Stateless Persons (from 1954) entered into force for the Netherlands in 1962 and this instrument sets out the rights to be enjoyed by stateless people. But just last week, an important Dutch advisory body concluded that “there is no proper instrument to establish statelessness in the Netherlands, which means that often cases of statelessness are left undetermined”. According to the Netherlands Advisory Committee on Migration Affairs (Advisory Committee), this must change because statelessness is something special. Their report, “No country of one’s own” contains a number of concrete recommendations that warrant our attention.

There are different ways in which a person can end up stateless. My first encounter with statelessness was with the little Omar (pseudonym). Omar was a healthy baby with two loving parents. But he faced one considerable disadvantage, right from the start: he had no nationality. He could not acquire his mother’s nationality because she was from a country where women do not enjoy an independent right to pass nationality to their children (still a problem in more than 25 countries around the world today). Nor could he get his father’s Dutch (!) nationality, because his parents were not married. His father needed to recognize his paternal link with Omar before the birth in order to automatically confer his nationality – but he didn’t know that.

Omar is not alone. Of the 2005 people who are registered as stateless in the Dutch Municipal Basic Administration (GBA) a surprising 1400 were actually born here in the Netherlands. While the nationality of these individuals is often not a purely Dutch issue, we are still forced to conclude that the Netherlands is contributing to the creation of statelessness. The Netherlands has a safeguard in its nationality law according to which children like Omar can opt for Dutch nationality after three years. However, in practice, the Advisory Committee has pointed out a number of problems in the implementation of this policy. A particularly troublesome issue is the condition that Dutch law stipulates for the exercise of this right of option, namely that the child is lawfully resident – a requirement that is, quite simple, in violation of the Netherlands’ international obligations (1961 UN Convention on the Reduction of Statelessness). Thanks to this requirement, many children are unable to exercise their right to a nationality. There are currently 85 stateless children registered in the GBA who were born here and are now four years old or more, but who cannot opt for Dutch nationality because they do not have a residence permit. The Netherlands is failing these children. This is why the Advisory Committee report urges to “drop the condition of lawful stay for the right of option for children born in the Netherlands”.

For many people, the first encounter with statelessness is through the story of Victor Navorski, the character played by Tom Hanks in “The Terminal”. As creatively demonstrated in this film, some stateless migrants find themselves stuck in limbo. In the film, limbo has a physical manifestation: Victor is trapped at the airport, he cannot leave through the exit doors because he has no permission to enter the country, but he also cannot board a plane to leave and go elsewhere because he does not have a valid passport. In the Netherlands, statelessness is also not a ground for a residence permit, but there is also no other country to which a stateless person can return. This can mean that a stateless person spends a long time trapped in immigration detention or is faced with the daily struggle of survival as an irregular migration in the Netherlands. This situation is not in anyone’s interest and requires a humane and practical solution. The Advisory Committee has therefore recommended that the Netherlands establish a procedure for determining whether a person is stateless and the grant of residence on that basis.

The Advisory Committee’s report demonstrates very clearly how the Netherlands can make just a few small policy adjustments to bring real change to a small group of people. It will also help to generate more understanding for stateless people. As a stateless woman once explained in an interview to UNHCR: “When I tell people that I am stateless, what I see in their faces is shock, ignorance and mistrust. Each time you have to explain. It’s as if you have to prove your right to exist!” It is vital to fight against this ignorance. Statelessness is something special, but a stateless person is also a person.

This blog is an English translation of a similar piece that was published on the public comments page of Dutch newspaper Trouw on Thursday 12 December 2013.

Dr Laura van Waas, Senior Researcher and Manager, Statelessness Programme