- Written by Global Campaign for Equal Nationality Rights •
- The Issue
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To the esteemed members of the Constituent Assembly of Nepal,
We would like to express our serious concern regarding the draft Constitution's provisions pertaining to nationality, which would grant citizenship by descent only when an individual provides proof that both his/her father and mother are Nepali. The proposed provision also discriminates on the basis of gender by denying women equal rights with men to confer nationality to foreign spouses. If included in the new Constitution, the proposed nationality provisions would result in significant human rights violations, including statelessness, and would enshrine gender discrimination.
According to a 2013 study by the Forum for Women, Law and Development (FWLD), roughly 24% of the total population of Nepal does not have citizenship certificates. By requiring proof of both parents’ Nepali citizenship, the proposed nationality provisions will significantly increase the proportion of Nepalis without citizenship, hampering the country’s development and causing unnecessary hardships and suffering for Nepalis and their families.
Nepali children who are denied citizenship face significant problems in their lives, including:
- Lack of a legal status and statelessness
- Lack of access to education, healthcare, and even a livelihood
- Restrictions on freedom of movement, particularly the inability to obtain travel documents for foreign travel
- Barriers to accessing services and products such as bank accounts and mobile phone accounts
- The inability to own or inherit property
- Significant emotional and psychological impact on affected persons and their families
The proposed provision is also in contradiction with international law, including commitments made by the government of Nepal as a signatory to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). For example, according to the CRC States have an obligation to ensure that children acquire a nationality, in particular where the child would otherwise be stateless. Furthermore, as a party to CEDAW, Nepal also has obligations to ensure that women enjoy equality in the area of nationality (Article 9), including the equal right to confer nationality to foreign spouses.
Given the serious human rights violations and hardships that will be experienced by Nepalis and their families, we appeal to you to:
1) Constitutionally recognize the fundamental human right of all human beings to a nationality, without discrimination.
2) Take immediate steps to amend/repeal all discriminatory provisions that prevent women from acquiring, retaining and transferring citizenship on an equal basis with men in the Constitution.
3) Recognise the independent right of each parent to provide citizenship based on lineal descent to their children, and the right of both women and men to confer citizenship to their foreign spouse on equal terms.
Gender discrimination and statelessness have no place in the 21st Century. Ensuring that the Constitution upholds gender equality and that all children of Nepalis are granted citizenship will lead to a brighter future for Nepal and all its citizens.
Nationality laws in 26 countries worldwide prevent mothers from passing their nationality to their children on an equal basis with fathers. Over 50 countries deny female citizens equal rights with male citizens in their ability to acquire, change and retain their nationality, and to confer nationality to non-national spouses.
This discrimination results in significant human rights violations and suffering for individuals and families, contributing to myriad of problems. These laws are also in contradiction to international law, including state commitments to a number of international conventions.
Countries that discriminate against mothers in their ability to confer nationality on their children:
The Bahamas, Bahrain, Barbados, Brunei, Burundi, Iran, Iraq, Jordan, Kiribati, Kuwait, Lebanon, Liberia, Libya, Malaysia, Mauritania, Nepal, Oman, Qatar, Saudi Arabia, Sierra Leone, Somalia, Sudan, Swaziland, Syria, Togo, United Arab Emirates
Countries that discriminate against unmarried fathers in their ability to confer nationality on their children:
The Bahamas, Barbados, Madagascar, Malaysia, the United States
Countries that discriminate in a women’s ability to confer nationality to spouses and/or acquire, change and retain her nationality:
Bahamas, Bahrain, Bangladesh, Barbados, Benin, Brunei, Burundi, Cameroon, Central African Republic, Comoros, Congo (Republic of), Egypt, Guatemala, Guinea, Iran, Iraq, Jordan, Kiribati, Kuwait, Lebanon, Lesotho, Libya, Madagascar, Malawi, Malaysia, Mauritania, Mauritius, Monaco, Morocco, Nauru, Nepal, Nigeria, Oman, Pakistan, Philippines, Qatar, Saint Lucia, Saint Vincent & Grenadines, Saudi Arabia, Sierra Leone, Singapore, Solomon Islands, Somalia, Sudan, Swaziland, Syrian Arab Republic, Tanzania, Thailand, Togo, Tunisia, United Arab Emirates, Yemen
Gender-Discriminatory Nationality Laws and...
- Women's Rights Violations:
Denying women and men equal nationality rights is a clear form of discrimination based on sex. The vast majority of nationality laws that maintain gender-based discrimination, discriminate against women by denying women equal rights to acquire, change, retain and confer nationality to children or spouses. These laws are often the legacy of laws implemented under colonial rule and are rooted in systems that held women to be unequal to men. Nationality laws that discriminate on the basis of gender are in contradiction to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which explicitly obliges States to guarantee equal nationality rights to women (Article 9). When a State denies equal nationality rights to women and men, it creates a category of second class citizens. Gender equality cannot be realized in a country that maintains gender-discriminatory nationality laws.
Gender discrimination in nationality laws is one of the primary causes of statelessness, a status whereby an individual is not recognized as a citizen by any country. Statelessness can occur when children are unable to acquire their parents’ nationality, or when a woman loses her nationality due to her gender and marital status, in addition to other causes. Statelessness results in wide-ranging and significant human rights violations and hardships that can impact individuals and their families for generations. In addition to other human rights violations, stateless individuals are denied participation in political processes, including the right to vote and run for public office. There are an estimated 12 million stateless individuals worldwide. Ending gender discrimination in nationality laws is critical to eradicating statelessness and is listed as Action #3 in the United Nations High Commissioner for Refugees’ Global Action Plan to End Statelessness by 2024. Action #3 also calls for stakeholders to work with the Global Campaign for Equal Nationality Rights to realize this goal.
- Obstacles to Children’s Education:
Gender discrimination in nationality laws impedes a child’s access to education in a number of countries. Stateless children and those living in their mother’s country without that country’s citizenship are often prevented from attending public school until all children with citizenship are registered and are often forced to pay higher school fees. Many, because of their nationality status, have no access to state-sponsored education. This situation continues through secondary and tertiary education, severely limiting children’s access to education and, later, job opportunities. This is in contradiction to State obligations to the Convention on the Rights of the Child (CRC), in addition to other human rights conventions.
- Lack of Healthcare & Social Services:
When individuals lack citizenship due to sex-discriminatory nationality laws, they are also frequently denied access to social services including national healthcare. The higher costs of private healthcare can increase the occurrence of untreated diseases and inhibit preventative healthcare interventions. Affected individuals may also be denied driver’s licenses, bank accounts and access to social welfare programs. The marginalization and hardships faced by these individuals can also lead to social alienation and psychological distress.
- Discriminatory Nationality Laws & Gender-based Violence:
Gender discrimination in nationality laws can contribute to gender-based violence. Women who have lost their nationality through marriage or whose children do not have access to their mother’s nationality may be less likely to leave an abusive marriage. Additionally, there is a higher risk of human trafficking among statelessness women and girls. Gender discrimination in nationality laws can also contribute to child and forced marriages. Girls who are without nationality in their home country may be forced into early marriage in hopes of obtaining greater security and access to the benefits of citizenship. Women who become pregnant as a result of rape have an increased risk of having stateless children when a State’s nationality is based on paternity.
- Threatened Family Unity:
Countries that deny women equal rights to confer nationality to foreign spouses threaten family unity, including the child’s right to know and be cared for by his or her parents. For example, when foreign men are denied access to their spouses’ nationality, they may be forced to live away from their children due to challenges in acquiring residency permits and obstacles to employment. Couples have even reported not starting a family because of the hardships their children would face due to the mother's inability to confer nationality to her children.
- Lack of Economic Opportunities & Poverty:
When women are unable to confer nationality on their spouses, their husbands may be denied work permits and must often pay expensive residency permits. Women whose children and husbands are denied her nationality may be forced to provide for the entire family, even when children reach adulthood. Children’s lack of educational opportunities due to discriminatory nationality laws can lead to a life of economic hardship and barriers to formal employment. Children denied citizenship through their mother are often prevented to acquiring their inheritance, including the family home. Denied social services only exacerbate these families’ vulnerability.
- Violations of International Law:
Gender discrimination in Nationality Laws contradicts a number of international conventions and agreements, including the Universal Declaration of Human Rights; the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child (CRC), the Convention on Statelessness, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR). CEDAW explicitly obliges States to guarantee equal nationality rights to women in the ability to acquire, change and retain their nationality, including the right to confer nationality on spouses (Article 9), and to guarantee women equal rights to confer nationality to their children (Article 9). Sex-discriminatory nationality laws impede children’s access to nationality and family unity, healthcare, and education, in violation of the CRC (Articles 7, 24 and 28 respectively).
- National Resiliency & Development:
Discriminatory nationality laws deprive a country of the contributions of a segment of their populations, resulting in a lower GDP. Gender discrimination in nationality laws can also contribute to health threats to society due to untreated diseases. Equal nationality laws support greater national stability, economic development, good health and prosperity by allowing more people to contribute to their country’s economy and development. Eliminating discriminatory nationality laws also promotes a more engaged citizenry.
The Global Campaign for Equal Nationality Rights mobilizes international action to achieve law reform in the 27 countries that prevent mothers from conferring their nationality on their children on an equal basis with fathers; and to achieve law reform in the 50+ countries which deny women equal nationality rights with men, including conferral of nationality to non-national spouses.
Campaign Coalition members include local, regional and international NGOs, academics, civil society partners, UN agencies, and government allies across the globe. Coalition members contribute to the Campaign in a variety of ways, including through local activism, international advocacy, knowledge sharing, capacity building and research. Interested organizations and individuals are invited to join the Campaign Coalition.
Founding Steering Committee members include Equality Now, Equal Rights Trust, the Institute on Statelessness and Inclusion, the Office of the United Nations High Commissioner for Refugees (UNHCR), and the Women’s Refugee Commission, where the Campaign Manager is based.
In consultation with national and regional organizations and Coalition members, the Campaign supports advocacy for nationality law reform in target countries. The Campaign works with national partners to identify potential entry points for promoting change and develop national advocacy strategies.
The Campaign’s global advocacy complements national-level reform efforts, increasing awareness at the international level of the need for gender equal nationality laws worldwide. Global advocacy interventions include engagement of target and champion governments; providing information to relevant UN Treaty Bodies and special mechanisms; and mobilizing UN and international civil society actors.
Research & Knowledge Sharing:
The Campaign collaborates with international and national actors to identify research gaps and engage allies to conduct needed research pertaining to gender discrimination in nationality laws. The Campaign provides technical assistance and implements capacity building activities to support nationality law reform efforts, including through the sharing of good practices and lessons learned among civil society groups and governments leaders.