Latest news feedRefugees Magazine Issue 147 ("The Excluded: The strange hidden world of the stateless") - Sorry, wrong gender
by Mark Manly
Two people meet and fall in love. They are married and have children. But what happens if husband and wife have different nationalities and the wife is unable to transmit her nationality to her children? The ending is not always a happy one.
The Association Démocratique des Femmes du Maroc describes the difficulties encountered in Morocco by children with a Moroccan mother but a non-Moroccan father: "The child had no civil registry card. The mother had to apply for a re-entry visa each time she wished to take her child abroad. From the age of 15, the child was required to have a foreigner's residence permit which had to be renewed each year. The child had difficulties registering at university after obtaining the baccalauréat."
Many children born to mixed marriages will acquire the father's nationality and, in principle, should be able to obtain a passport and live in his home country. If the father is stateless, however, the children may be unable to acquire any nationality.
Freddy is around 50 and has spent all his life in Egypt, but that did not make him an Egyptian. Nor, under Egyptian law, did the fact that his mother was Egyptian give him any automatic right to nationality."I was born in Cairo; my father was a stateless person of Armenian origin. He came to Egypt after the First World War, when the Ottoman and Russian empires collapsed. Despite the fact my mother had Egyptian nationality, I am stateless like my father," he says, adding "I suffer from asthma, I am single. I don't have much to offer a family."
Even when the father does have a nationality, if his country's laws do not permit him to pass it on to children born abroad, they may end up stateless.
Sometimes a child who is entitled to his or her father's nationality may still fail to get it because his country does not have a consulate in the state where the child was born, and the family cannot afford to travel somewhere where there is a consulate.
On other occasions, the marriage falls apart and the father refuses or neglects to register a child, and the mother – who desperately wants to pass on her nationality – cannot do so.
Discriminatory laws
This form of discrimination against women used to be very common. In fact, the notions of "dependent nationality or "unity of nationality of spouses" previously predominated in nationality legislation worldwide. The assumption was that dual nationality should be avoided, and the whole family should possess the same nationality — namely the father's. As a result, the woman was supposed to take the nationality of the man upon marriage and so were any children she might bear. The possibility that the father might not have a nationality, or that a mixed marriage might end in divorce, was not taken into account.
Discriminating against women, when it comes to passing on nationality, is prohibited by two international human rights treaties: the 1957 Convention on the Nationality of Married Women, and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). As a result, the practice has gradually been abandoned by more and more countries.
There are, however, still dozens of states in Africa, Asia and the Middle East that retain such discriminatory measures. Although 185 countries are party to cedaw, many have entered reservations to the provisions on nationality, so are not bound to respect them.
Welcome changes
Despite this, there are clear signs of a change in the air, with active civil society campaigns to amend the laws under way in various countries. In Morocco, the Association Démocratique des Femmes du Maroc (ADFM) lobbied the Government for years to change the law. It has also linked up with organizations doing similar work elsewhere in the region. According to ADFM, "we try to share the positive results we have achieved with other countries in the Middle East and North Africa, via a network of ngos called the Women's Learning Partnership. Together, we have launched a regional campaign for the equality of men and women when it comes to acquiring and transmitting nationality." The Learning Partnership is also working in Algeria, Bahrain, Egypt, Jordan and Lebanon.
Governments are becoming increasingly aware of the adverse impact gender discrimination on nationality issues can have on people's everyday lives. A number of countries have recently adopted, or are currently considering, new laws that seek to address this situation. Since 2004, for example, Egypt, Morocco, Iran and Bahrain have all adopted laws which allow children to acquire their mother's nationality – although unfortunately several of these countries continue to set at least some restrictive conditions on the transmission of nationality via women (for example, in some countries, the father's nationality is passed on automatically, while a mother must apply to naturalize her children). Also, in some cases, the new laws do not apply retrospectively.
In Morocco, the Government promised in 2005 to amend the 1958 Nationality Code to allow women to pass on their nationality to their children, and the amended Nationality Code duly came into force in early 2007. adfm notes that many children born to foreign fathers have already requested Moroccan nationality and have been able to acquire it, but warns it is still too soon to evaluate the overall implementation of the new law.
Indonesian example
In 2006, Indonesia adopted a new Citizenship Law which, at least with regard to gender equality, is a model for other countries. Indonesian Member of Parliament Tuti Indarsih Loekman Soetrisno said that when she and other members of a parliamentary committee on citizenship made field visits during the drafting of the law, they witnessed first-hand the impact of the previous law on women and their families.
"In the 1958 Law, nationality was transferred primarily through the father and only in special cases could the mother transfer her nationality," she said. As a result, Indonesian women who married foreigners faced many problems."Their children and husbands were considered foreigners with very limited immigration status, which obliged them to leave Indonesia every year to renew their visas – for which they had to pay a substantial amount. If something happens to the marriage, the mothers do not have any right at all to custody of their children." The new law, she says, provides improvements "such as a much broader, generous and more gender-neutral definition of citizenship... Under the new law, citizenship is awarded to all children who have at least one Indonesian citizen as parent, whether married or not."
She noted however that many government officials in the field were still not aware of the new legislation."Therefore, whenever I have a chance, I am using every opportunity to disseminate the improvements in the new law, and the government regulations, by visiting towns and villages in Indonesia, as well as Indonesian Consulates and Embassies overseas so that the benefits of the new law will be enjoyed by as many Indonesians as possible." It's a slow, grinding process, but gradually those small gender-related clauses in citizenship laws around the world that have caused so much hardship are being chipped away.
Source: Refugees Magazine Issue 147: "The Excluded: The strange hidden world of the stateless"
(September 2007). Download the complete issue in pdf format: low-resolution (1.8 Mb) here or high-resolution (6.8 Mb) here.
