Of woman born – how gender discriminatory nationality laws contribute to statelessness in Nepal

An estimated 5.4 million individuals in Nepal (24 per cent of the population aged 16 years and above of Nepal’s 30 million population) do not have citizenship documentation ¹.

I wrote about all the basic rights that are unavailable to a stateless person here.  Statelessness in a population arises for a number of reasons such as minority group discrimination, migration issues, lack of birth registration or discriminatory nationality laws.  In this blog I want to focus on one particular cause of statelessness which affects Nepal and contributes to the high number of stateless people within its borders – gender discriminatory nationality laws.

 

In bad company: gender discrimination in nationality laws is a global problem

Nepal is one of over 50 countries that denies women equal rights with men to acquire, change or retain their nationality, and to confer nationality on their non-national spouses ², in contravention of Article 9(1) of Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) ³.

Nepal is also among at least 26 states which retain provisions discriminating against women with regard to conferral of nationality upon their children ⁴.  In the absence of any safeguard, statelessness results from such provisions when the father is a non-national and he is stateless himself.  As such, he cannot confer nationality under the law of his State, or is unable or unwilling to fulfil any bureaucratic requirements for acquisition of nationality by his children.  Discriminatory laws often make it impossible or difficult for the mother to pass on her nationality to her child on an equal basis as the father ⁵.

 

Nepalese women and the right to nationality

Before we look at the impact on children, let’s look at how women are able to acquire nationality in Nepal.

Women in Nepal face administrative restrictions when it comes to applying for their citizenship certificate.  To apply for citizenship by descent administrative rules require a married woman to submit a formal attestation from her husband, or husband’s family (if widowed), an unmarried woman or girl need a formal attestation from her father, that she qualifies for citizenship and has his or their permission to receive it ⁶.

In effect, despite the nationality laws in place, women only have a qualified right to citizenship since obtaining it does not depend solely on the laws of Nepal but on the applicant’s father’s or husband’s cooperation.  And the men in their lives often refuse because without citizenship a woman cannot access the courts make legal claims to land and property ⁷.

Nor can women pass on their citizenship to foreign-born husbands in the way that Nepali men can to their foreign-born wives.  Where a Nepali woman marries a foreigner, the husband can only apply for naturalised citizenship after 15 years of residence in Nepal.  And although she can apply, the state retains significant discretion in determining the application.  No special privileges in relation to visa, employment or business opportunities are available to a foreigner husbands as they would be to foreign wives ⁸.

 

Statelessness and the constitution of Nepal

The latest version of the law stems from Nepal’s September 2015 constitution.  On first look they appear more restrictive than the previous interim constitution of 2007.  The 2007 Constitution allowed for citizenship by naturalisation, but seemed more gender equal when it came to citizenship by descent which was allowed to persons born to a father or mother who were Nepali citizens at the time of the child’s birth.  This was also confirmed by the Citizenship Act of 2006, and a 2011 Supreme Court directive  considering when children are entitled to nationality by descent ⁹.  All provide for citizenship by descent if a child is born to a Nepali mother or a Nepali father.

The initial draft of the constitution required both a Nepali father and mother for a child to be a national of Nepal by descent.  After a public consultation and much outcry over the draft provision, Article 11.2.b was changed to say mother or father.  But the discriminatory nature of the citizenship provisions were not fixed by this one amendment.  According to Article 11.5 of the Constitution, Nepali women should both establish evidence of the citizenship of the child’s father and that the offspring was born in Nepal in order to obtain citizenship by descent. This is not required of Nepalese fathers.  This means that those born to Nepali mothers and foreign fathers can only acquire citizenship by naturalisation. But such citizenships are only rarely distributed in Nepal.  As of January 2017, only 13 persons had obtained such naturalised citizenship certificates.  Article 11.5 does permit children born in Nepal to Nepali mothers to acquire citizenship by descent but only if the father cannot be identified or cannot be traced ¹⁰.  In a conservative, deeply religious, and patriarchal society, arguing that the father cannot be traced or is unknown just exposes women and their children to more discrimination and stigmatisation rather than help to integrate them and their children more fully into society ¹¹.

 

Nepal’s obligations under international law

Nepal has ratified the majority of the international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and Optional Protocols, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of all forms of Racial Discrimination (CERD), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of Persons with Disabilities (CRPD).

However, Nepal still has a difficult relationship with the concept of statelessness.  It is not a party to the 1954 Convention Relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness.  It appears to reject the term ‘stateless’ to describe the many individuals who do not have citizenship certificates ¹².

The failure of Nepal to accept that it has a statelessness problem, and to take action to address that problem has meant further human rights violations in relation to individuals already suffering because of gender discriminatory laws.  The creation of stateless children caused by gender discriminatory laws breaches Nepal’s obligations under Article’s 7 and 8 of the Convention on the Rights of the Child (CRC).  Article 7 CRC requires the state to register the child immediately after birth and gives the child the right, from birth, to a name and nationality.  States are obligated to implement these rights, “in particular where the child would otherwise be stateless”.  Article 8 CRC requires Nepal to respect the child’s right to an identity “including nationality, name and family relations”.

Nepal’s contribution to the statelessness problem within its borders arguably breaches international human rights law.  In relation to nationality, customary international law asks states to consider nationality claims in the context of the applicant’s “genuine and effective links” with the country ¹³.  Those links include social, cultural and economic ties which have been established over time.  But in Nepal those links are not considered as important as the desire to avoid creating a matriarchal society by giving women equal rights or to allow many Indian settlers in Nepal’s southern plains to gain citizenship through marriage to Nepali women ¹⁴.

 

So what should Nepal do?

Nepal should, as a priority, accede to the statelessness conventions: the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.  Of course, on accession, it should seek to comply with obligations on the identification of stateless people and their protection and focus on the reduction and mitigation of statelessness within its borders.

Nepal is proposing an amendment to its current citizenship law, the Citizenship Act 2063 amendment bill ¹⁵.  It is not yet finalised, but it unfortunately, it looks like the amendment mirrors what is in the 2015 constitution and continues to discriminate in the case of a Nepali mother and a foreign father ¹⁶.  Under the proposed amendment, a child born to a Nepali mother whose father is unknown will be entitled to citizenship by descent.  But the citizenship by the descent of the child who was born to a Nepali mother will be converted to naturalised citizenship if it is found later that the father is in fact a foreign national and the child has not obtained citizenship of the foreign country on the basis of the father’s nationality.  It is not clear yet whether the amendment bill will pass into law in its current form.

 

Creating gender equality

To create much needed gender equality in its nationality laws, Nepal should follow the recent recommendations made by the CEDAW sixth periodic report on Nepal ¹⁷ to:

“Repeal all remaining constitutional and legal provisions that discriminate against women and girls, particularly in the areas of nationality, distribution of marital property upon divorce and access to employment abroad.”

“Amend or repeal all discriminatory provisions in its Constitution that are contradictory to article 9(2) of the Convention in order to guarantee that Nepali women may transmit their nationality to their children, as well as to their foreign spouses, under the same conditions as Nepali men, whether they are in their own country or abroad.”

“Bring the Citizenship Act Amendment Bill and Rules, as well as the draft Birth, Death and Other Personal Event Registration Act in line with the Convention, including by removing requirements regarding (i) consent and assistance of the husband or the husbands’ family, and (ii) documentation of the whereabouts/identity of the husband;”

In terms of minimising administrative barriers, rather than laws, Nepal should consider changing the attitudes of local government officials responsible for the issue of citizenship certificates, and

“Provide training to District Administration Offices on the 2013 Circular to provide citizenship certificates to children based on the Nepali citizenship of their mother, and establish a complaint mechanism in case of denial of citizenship application;”

 

Choices

Despite proposed changes to simplify citizenship procedures and to grant citizenship by descent to children of unknown fathers and Nepali mothers, Nepal still has more work to do.  Its constitution is only three years old, but instead of bringing equality to Nepal’s female population, it seems to have taken a step back. Statelessness is a man-made problem.  The number of stateless people within Nepal’s borders, within any state’s borders, can be minimised through updating and improving domestic nationality laws.  And that includes amending laws to ensure that they do not discriminate on the basis of gender.

All too often, women are not agents of their own destiny.  Being denied the right to apply for citizenship in one’s own country and to pass on that citizenship to one’s own child are examples of how far states continue to collude both in denying equality to women (in this case, in contravention of Nepal’s own Constitution – Article 18 “All citizens shall be equal before law; and no person shall be denied equal protection of law.”, Article 38 “Every woman shall have equal lineage right without gender based discrimination.”) and to contributing to creating and reinforcing the conditions for statelessness.

A choice can be made to embrace and promote gender equality and to help eradicate statelessness.  Nepal can choose to make that choice.