Stand Against Gender Discrimination in Nationality Laws
by Michael Caster
During its thirty-second session, which concluded last month, the United Nations Human Rights Council adopted a newresolution on women’s equal right to acquire, change, or pass on their nationality. This is a positive step for gender equality, not only for the potential benefit to women worldwide, but because it demands greater international awareness of the intersectional abuses of discrimination. Gender discrimination in nationality laws, as with all forms of gender discrimination, doesn’t only affect women and girls. It also affects men and boys. In highlighting the severity of the problem, this U.N. resolution demands greater action from diverse stakeholders – from the civil society organizations that analyze and devise best practices, to governments that must implement new and existing obligations.
The scale of the problem is vast. The New York-based Global Campaign for Equal Nationality Rights explains that over 50 countries maintain some form of gender-discriminatory nationality laws. The United Nations refugee agency (UNHCR) revealsthat 27 countries continue to deny mothers equal rights to confer citizenship to their children.
For example, although men and women confer citizenship equally to children born in Malaysia, children of Malaysian mothers born abroad only obtain citizenship at the discretion of the Malaysian government. In the Bahamas and Barbados, only fathers confer citizenship to children born abroad. In Jordan and Saudi Arabia, women who marry foreigners almost never confer nationality to their children, while mothers in Brunei, Somalia, and Lebanon have no right to confer their nationality. This denial of equal rights carries many interconnected challenges –especially among ethnic minorities and refugees – that may result in additional human rights violations.
Gender discrimination in nationality laws, says Catherine Harrington of the Global Campaign for Equal Nationality Rights, is aleading cause of statelessness, a global issue that will affect at least 10 million people in 2016. According to the UNHCR, somewhere in the world a stateless child is born every 10 minutes. Within the countries hosting the 20 largest stateless populations, meanwhile, over 70,000 stateless children are born every year.
This trend has become especially pronounced among Syrian refugees in Jordan and Lebanon. In circumstances like this with high levels of migration, the risks of statelessness are compounded by gender-based discriminatory nationality laws in home and host countries. Coupled with high levels of male labor migration, or casualties in armed conflicts, these laws almost guarantee that the children born of single mother refugees in such countries will be born stateless. Without intervention, stateless children become stateless adults who pass their lack of legal status to their children and the cycle repeats itself.
Statelessness leads to profound human rights violations and livelihood challenges. It often denies children access to health and education. It forecloses on the freedom of movement and increases the likelihood of sexual or labor exploitation by traffickers or other predators. Mothers and children in such countries are more susceptible to sexual violence or domestic abuse. Abolishing discriminatory nationality laws is therefore crucial to the UNHCR campaign to eradicate statelessness by 2024.
Not only do gender-discriminatory nationality laws fuel statelessness, they are themselves a violation of international human rights law, which is unequivocal on discrimination against women. A 2013 report by the Office of the High Commissioner for Human Rights explains, “States are required to take all measures to remove laws and procedures and to abolish practices that directly or indirectly discriminate against women.”
Several human rights treaties elaborate on non-discrimination in the right to nationality. The Universal Declaration of Human Rights establishes the right to nationality, while the International Covenant on Civil and Political Rights specifically guaranteesevery child the right to nationality. The Convention on the Rights of the Child (CRC), Article 7, holds that children should be registered immediately after birth and should have the right to acquire nationality. Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides that states “shall grant women equal rights with men with respect to the nationality of their children.”
While CRC and CEDAW are among the most ratified human rights conventions, they also contain a high degree of reservations. More than 10 states, including Brunei, Jordan, and Lebanon, have entered explicit reservations that they do not consider themselves bound by Article 9 of CEDAW, and others including Kuwait and Malaysia have issued similar reservations to CRC Article 7. This must change.
In the last decade some states have addressed gender discrimination in their nationality laws, such as Indonesia in 2006, Kenya in 2010, and Senegal in 2013. The Abidjan Declaration of the Economic Community of West African States in 2015 further committed to ensuring gender equality and eliminating statelessness. These reforms are encouraging but further mobilization is needed, as highlighted by the recent Human Rights Council Resolution.
The Council has called upon states to implement legislation consistent with international standards and to take immediate steps to reform discriminatory nationality laws, to ensure awareness-raising, and conduct gender-sensitive training for officials, judges, and local leaders.
Additional physical, administrative, and cultural barriers must be identified and removed. This includes addressing the role of ethnic or religious nationalism in fueling gender-based discrimination and the denial of citizenship. Policies in this area cannot overlook the paramount importance of birth registration (not only a human right but also necessary to ensure no child is denied a nationality), and the removal or lessoning of financial obstacles to such. States must ensure appropriate remedies for women and children whose rights to nationality have been arbitrarily violated, and provide accessible, safe spaces and protection mechanisms for those at risk.
The resolution calls for an expert workshop on best practices and encourages states, United Nations bodies, civil society organizations, academia, and others to play an active role in eliminating gender discrimination in nationality law and practice. Without diminishing the complexity of this project, academics and policy-makers must recognize the need for increased critical analysis of the causes of these discriminatory laws. Moreover, they must propose legal and policy changes to eliminate gender discrimination in nationality laws and identify effective measures for holding responsible governments accountable.
About the Author
Michael Caster is a 2016 graduate of The Fletcher School. He is a human rights advocate, researcher, and civil society advisor who has worked in China, Thailand, Myanmar, Turkey, and Tunisia.