It is the worst possible thing to happen to a human being. It means you are a non-entity, you don’t exist, you’re not provided for, and you count for nothing.

Remarks by a Nubian elder in Kenya quoted in UNHCR, ‘Media Backgrounder: Millions Are Stateless, Living in Legal Limbo’, (2011).

You have spent your whole life in the country you were born, it is the only life you have ever known, the only country, culture and perhaps language you can identify with. Throughout your life you are denied access to education and healthcare, you are fired from every job you were ever lucky enough to get in the first place, you are detained and arrested regularly through no fault of your own. You will never be allowed to leave this place, you will not be able to marry and therefore build a family, simply because your mother married a foreign man?

This is one example of statelessness and the devastating impact it has on peoples lives, touching upon every social element from health to education to livelihood to personal relationships. A woman marrying a foreigner is only one of myriad ways to cause this, similarly in the situation of unmarried mothers, widowed women, displaced women, and the list goes on.

Less than a century ago the nationality laws of almost all countries did not provide equal rights to women in nationality laws. Over time this has dramatically changed with widespread legal reforms all over the world. However, there still remains much work in order to realise full equality in this area of the law. UNHCR’s survey of nationality legislation reveals that equality between men and women in terms of transmitting nationality upon children ‘has not been attained in 27 countries in almost all parts of the world’.³ There are also further types of inequality in a wider range of countries across the world, which will not be focused on extensively but mentioned later. ⁴ The under-researched area of lack of retroactivity in nationality law amendments will also be discussed briefly.

Historical and Legal Contexts

Gender discrimination in nationality legislation was a common feature of nationality laws adopted in the late 19th and early 20th centuries, at this time it was also introduced to the Middle East and North Africa (MENA) region because of the French and British influence in the region. As recently as the end of WW2, gender discrimination in access to nationality was a norm around the world, there are various reasons as to why this was the case. Going back to the end of the 19^th Century the main system with regards to nationality law was the ‘unitary system’, essentially that every person should only have one nationality, therefore certainly within one family there should be one nationality. At this time almost all women in the world would automatically acquire the nationality of the husband and this would also be passed on to the children.

Whilst it seems unproblematic at first glance, after WW1 there an increase in the cases of statelessness began. After WW1 passports were vital in proof of identity and nationality.² We can now say that the ‘experience of statelessness as a life in legal limbo thus corresponds to the ever-growing importance of the passport system in the twentieth century’.³

The twentieth century was an era of change in terms of wars and states ‘in flux’, forming and collapsing. As revisions of territories and boundaries began the unfortunate result was a growing number of stateless people with no legal protection from any state.

An absolutely integral cause of statelessness was that adopting a new nationality meant giving up ones former nationality. This was a common aspect of almost all nationality laws all over the world. Whilst there were several causes for the increase in statelessness such as contradictory nationality laws, the actions of states against their own citizens etc. the main cause this paper is primarily concerned is specific to gender and the concept of ‘derivative citizenship’.⁶ A rather archaic idea compared to today, however, in this way a woman’s citizenship was decided according to her belonging, either her father (her place of origin) or her husband of a different nationality. Due to the automatic acquisition of this new citizenship this could and certainly did lead to statelessness in the event of her husbands country not granting his wife full citizenship in her own right and the marriage later dissolving, or the wife not fulfilling naturalisation requirements. In this case there would then be further problems should the woman give birth to a child and still not be able to pass on any citizenship.

In the 1920’s already certain countries had taken legal steps to provide that marriage did not have any effect on the nationality of women. The next step towards rectifying this situation came in the form of the Hague Convention on Certain Questions relating to the Conflict of Nationality laws in 1930, it was the first international instrument to regulate the issue. The Convention stated that if a woman was not able to gain the nationality of her husband she could keep her own nationality, this was a major shift away from the norms at the time.⁷

However, it is important to note the reasons behind the shift, many women viewed not being able to have the right to an independent nationality as a women’s rights issue. However, International law looked upon it first and foremost as a problem of statelessness and dual nationality.⁸ The Hague Convention ‘addressed women’s nationality only insofar as it was necessary to reduce statelessness and dual nationality’.⁹ Therefore, in this way the desire of the international community to restrict dual/multiple nationality connects to gender discrimination, and this relationship between the two is an important point in the evolution of gender equality within nationality law. Geographically, the area leading the way at this time was the Americas, with the 1933 Convention on the Nationality of Women, which was declared in Montevido. The Convention stated that ‘there shall be no distinction based on sex as regards nationality, in their legislation or in their practice’.¹⁰

Knop summarises the evolution rather succinctly by dividing the evolution of issues of equality regarding independent nationality into three ‘generations’.

Over time it is evident that the ‘first generation’ was concerned with the equality of women as individuals and the issue of a married woman’s right to an independent nationality, whereas the ‘second generation’ of issues involves the protection of women’s relationships with other family members.¹¹

Essentially the question of whether nationality law treats a mothers relationship to a child in the same way as a fathers, and a wife’s relationship to her foreign husband the same as a husbands relationship to his foreign wife?¹² The 1957 Convention on the Nationality of Married Women deals with this ‘first generation’ of issues by providing that a woman’s nationality is not automatically affected by marriage or divorce with a foreign national, nor by change of nationality during marriage. This was the first worldwide convention that wanted to create a completely independent nationality status for women. The 1979 Convention on the Elimination of all forms of Discrimination against Women (CEDAW) went further and granted men and women equal rights in terms of nationality to the children.¹³ CEDAW recognised a mother’s equal right to pass her nationality to her children and protect ‘important aspects of her relationship’ with them; however, it still compromised the traditional conviction of international law that ‘every person should have a nationality and one nationality only’. ¹⁴

International law could not find a solution to both, in order to fully realise the principle of equality, a relaxation of the avoidance of multiple nationality would also be necessary. The landmark case of ‘Unity Dow v. Attorney General of Botswana’ highlights this predicament, Unity Dow a Judge and human rights activist was the plaintiff in this case. She was married to an American citizen and residing in Botswana with her family, however, she was unable to pass Botswana citizenship to her children. However, if they had been born to a Botswana father and a foreign mother they would be citizens. The result was that the children could only remain as legal aliens only if forming part of their fathers residency permit. The presiding Judge stated that

What I have set out at length may inhibit women in Botswana from marrying the man whom they love. It is no answer to say that there are laws against marrying close blood relatives – that is a reasonable exclusion… It seems to me that the effect of section 4 is to punish a female citizen for marrying a non-citizen male. For this she is put in the unfavourable position in which she finds herself vis-à-vis her children and her country. The fact that according to the Citizenship Act a child born to a marriage between a citizen female and a non-citizen male follows the citizenship of the father [may] not in fact have that result.¹⁵

Therefore from this case it would appear that the ‘desire for eliminating dual citizenship does not, therefore lie in legislation which discriminates between the sexes of parents’.¹⁶ It is also of course important to look at the two legal instruments ‘at the heart’ of the legal regime against statelessness, the 1954 Convention relating to the status of stateless persons and the 1961 Convention on the Reduction of Statelessness. The 1954 Convention provided for the legal status of ‘stateless person’, ‘in short it revolves around improved protection of people who already are already stateless’.¹⁷ It did not address the actual prevention as such. The 1961 Convention deals more with ‘identifying which state is actually responsible for conferring nationality in particular circumstances in order to prevent new cases arising’.¹⁸

A progression on to what Knop characterises as the ‘third generation’ of reforms came in the form of ‘Recommendation 1081’³⁰ in 1988 the Council of Europe had acknowledged that the principle of equality would also require a relaxation of the principle of the avoidance of multiple nationality. In 1993 the ‘Second Protocol’ amended the 1963 European Convention on the Reduction of Multiple nationality. This protocol established the right to dual nationality for spouses of different nationality and their children, although it didn’t go as far as requiring any states to allow for this.³¹ The European Convention on Nationality in 1997(ECN) was another step forward, at this time the need for a Convention was related to the need for new democracies in Central and Eastern Europe and the succession states of the former Yugoslavia and USSR to draft nationality laws.³²

The European Convention continued further in what had been achieved by the Second Protocol.

‘We may even read the European Convention on Nationality’s hierarchy of norms as implicitly requiring dual nationality for families of mixed nationality. It is clear from the preamble that unlike earlier conventions, it does not treat statelessness and dual nationality as twin evils.’³³

The ECN was widely signed, however it did attract more reservations than any other specified or general human rights treaties.³⁴ The Convention is not a global undertaking and cannot be taken to represent an international norm but it is important nonetheless, as it is the ‘first multilateral undertaking that is protective of dual nationality in any context’.³⁵ Regardless of reasons for the creation of the 1997 European Convention it has certainly created ‘a foundation for which to build more expansive protections’.³⁶ At this point the link between the principle of equality and allowing dual nationality for spouses of mixed marriages and their children was beginning to gain recognition.

A one-fits-all solution to statelessness is not yet a legal reality, it is still a modern problem and a solution is still needed to eliminate gender discrimination as a root to its continuance. Significant numbers of people worldwide are living in a legal ‘limbo’ without any identity or status in any country. Perhaps it could be argued that statelessness and indeed gender inequality as a root to statelessness should be higher on the international agenda, it is notable that ‘the relative lack of attention paid to statelessness by the international community is striking in comparison to the resources directed at the situation of refugees’.³⁹

Women and citizenship

This body of literature really emerged in the 1970s and as such is a fairly recent area of legal discussion and certainly provides an interesting perspective. Although debates on the ‘gendered’ nature of citizenship are theoretical, ‘they have very real practical, often detrimental consequences for women’.⁴¹ Citizenship is commonly seen as a universal privilege, however as has been seen throughout the paper, there are different implications of citizenship for men and women.

Jane Wong refers to ‘law reform’ in the sphere of feminist legal theory as an ‘effort to change existing patriarchal law and to empower women and improve their position’.⁴² This is arguably the same in the context of nationality law, what is needed is an improvement of the position of women in order to help not only themselves but those who feel the knock-on effects of discrimination (children, spouses, grandchildren etc.) In a legal sense ‘such efforts include providing women with the same status, opportunities and legal rights as men’.⁴³

In his scholarly works Gerry Lawson suggests that feminist legal theories can be divided into five categories⁴⁴

1. The relationship between women and law
2. Scholarship focusing on women alone
3. Distinctive analytic methods applying theories of rational choice to legal problems
4. Ideas concerned with improving the condition or status of women
5. Work on specific policy issues that reaches a particular set of normative conditions

Numbers one and four are most relevant to the law reform discussed in this paper, specifically the relationship between nationality laws of a state and the impact it has on women. Number four is also relevant in terms of the need to change and improve this situation by abolishing these discriminatory rules, which many nations around the world have already done.

Catherine MacKinnon a leading feminist scholar makes the argument that laws based on sex equality have been so ineffective because ‘the question of sex equality uses maleness as the reference point for analysis’.⁴⁵

Indeed Lister supports this idea of ‘maleness’, she contends that the concept of a ‘citizen’ is very narrow in todays society, ‘the universalist cloak of the abstract, disembodied individual has been cast aside to reveal a definitively male citizen, and a white, heterosexual, non-disabled one at that’.⁴⁶

MacKinnon uses the metaphor ‘Take your foot off our necks, then we will hear in what tongue women speak’.⁴⁷ This approach is essentialist in the sense of treating all women the same, speaking in the same ‘tongue’. The theory of ‘essentialism’ has been argued as implicit in much feminist theory, whilst it has no fixed definition it has been characterised as ‘the set of fundamental attributes which are necessary and sufficient conditions for a thing to be [considered] a thing of that type.’⁴⁸

There are many critiques on this school of thought and indeed MacKinnon’s logic will not apply to all situations. A wider view is perhaps necessary, indeed ‘gender is mediated by other patterns of inequality involving race, class, age, ethnicity and sexual orientation’. ⁴⁹

This is a particularly important point when it is considered that women do not experience citizenship in the same way, with some women particularly from the southern and developing countries, members of certain ‘races’ or ethnicities of those from lower socio-economic groups being more disadvantaged than others.⁵⁰ Thus, statelessness, or the risk of statelessness, does affect ethnic minorities more often, and is ‘at best, the result of neglect and passivity and at worst, a manifestation of discrimination and rejection’.⁵¹

There is also the argument that ‘patriarchal societies’ play a role. In one of MacKinnon’s most controversial statements, ‘When [law] is most ruthlessly neutral, it is most male.’⁵² When laws are formulated are they merely addressing a social reality that reinforces the weaker position of women?

MacKinnon may be correct in her observations, bearing in mind the historic purpose of systems under which the father’s nationality is decisive to that of his children was to actually bring unity and stability to families. In reality this has had the exact opposite effect, when a child cannot access its mothers nationality due to discriminatory laws, the impact can be destructive.⁵³ Therefore despite the laws having ‘good intentions’ and appearing neutral, the effects are discriminatory against women, and in this way MacKinnon is correct about her theory of neutrality=maleness. However, there is a counter-argument to this in the form of the legal provisions that discriminate against men in nationality law in some legal systems, which will be discussed in the following section. Men have been discriminated against in their ability to pass down their nationality to illegitimate children, especially when the child is born abroad.

From this discussion we can see that there are various schools of thought in feminist legal theory that can apply to gender inequality in nationality law. These insights are important to understand the nature, culture and forms of gender discrimination. A better knowledge of connections between nationality law and gender discrimination will make it easier for states to respond effectively.

For example it was a commonly held belief that in MENA countries and Islamic societies the reason for the gender discrimination in nationality law actually related to sharia law that women are subordinate to men and do not have an equal right to nationality, however research shows there is no such basis. Radha Govil made a valid argument at the roundtable debate ‘How gendered is citizenship’ in 2012, by reminding us that these discriminatory laws were inherited from former colonists, often from common law or civil law jurisdictions. These provisions were subsequently not changed post-independence, and therefore the arguments of the role of sharia are false, this highlights the lack of knowledge that still exists around unequal nationality laws as a root of statelessness, it also shows that it must be examined on a country by country basis.⁵⁴

In the field of migration law, it is also apparent that women occupy the position of ‘second-class citizen’; the gendered aspect of both economic migration and asylum seekers is overlooked in ‘malestream’ writings. ⁵⁵Females are still perceived to migrate as dependents with their male counterparts, reinforcing the association of women to the private sphere as opposed to the traditionally ‘more male’ public sphere. Therefore ‘it is fundamentally important to continue analysing citizenship from a feminist perspective, particularly in light of the changing nature of citizenship in global society in theory and as well as in practice’.⁵⁶

What gender discrimination still remains in Europe and how is it affecting levels of statelessness in Europe?

As we have seen gender discrimination is a key cause of statelessness all over the world. As focused on in the historical context section, reforms have swept across the globe in rectifying this situation. However, today it is certain that at least 27 countries still have severe gender discriminatory provisions within their nationality laws, which contribute to statelessness, specifically that women cannot transmit their nationality equally to men. ⁵⁷

This does not mean to say that gender discriminatory nationality policy is not a problem in Europe, the consequences of this policy in other parts of the globe are still very much felt in Europe and as such a solution within European borders is required. Europe receives many migrants per year and as such it becomes the birthplace of children to women who are not entitled to pass on their nationality under the law of their home nations. If the father is unknown, unwilling or unable to pass on his, the child will be born and remain stateless. As long as gender discriminatory laws are perpetuating statelessness in various countries of the world it is still a problem in Europe. Besides migration, there are significant cases of statelessness in Eastern Europe including persons who have become stateless as a result of the dissolution of the Soviet Union and Yugoslavia. There are thought to be around 370,000 people lacking a nationality in Latvia and Estonia.⁵⁸ Exact figures are difficult to obtain due to the fact that few European states have little or no procedures in place to identify who is stateless on their territories, this is a significant problem for the EU. The Meijers committee has recently called on the EU to establish a common legal framework. Their report proposes common criteria in three main areas

1. a fair procedure for determining whether a person is stateless
2. the standard of treatment afforded to stateless persons
3. the conditions of residence for stateless persons⁵⁹

Legally the argument is that based on Title V of the TFEU, stateless individuals are equated with third country nationals, on which the EU has legislated on quite widely. This would also ‘sit comfortably’ with existing EU legislation and the policy aims of the European Council in the Area of Freedom, Security and Justice.⁶⁰ In 2012 the EU pledged to achieve accession by all Member States to the 1954 Convention and would consider acceding to the 1961 Convention, the pledge has yet to be implemented. As of the end of 2014, there were 37 European countries signed up to the 1954 Convention and 29 countries signed up to the 1961 Convention. ⁶¹In Europe, 12 countries are still to accede to the 1954 Convention and 20 countries are not yet part of the 1961 Convention.⁶² Within the European Union despite the various ratifications the conventions themselves have not been properly implemented by some Member States. A key problem is that most Member states do not have functioning procedures for determining statelessness. A way to legalising the status of a stateless person is often absent, leading to permanent marginalisation as statelessness is passed on through the generations.

Despite the introduction of equal treatment for both men and women in transmitting nationality to their children as laid down in Art. 9(2) of CEDAW, the Netherlands still provides that ‘in exceptional cases a nationality may be lost in case of recognition or legitimation by a foreigner’, albeit in very narrow circumstances, ‘due to the fact that no loss takes place if the other parent still possesses Netherlands nationality or died previously as a Dutch national’. It is a rare circumstance, but still entirely possible.⁶⁴

The next category whereby a person whose spouse or registered partner loses citizenship of a country, can this render them stateless? In almost all countries studied the answer was no, however, there are exceptions. In both Bulgarian and Turkish nationality law, it is provided that where a person has acquired citizenship based on the same fraudulent act as the spouse; they will share in the loss of citizenship if the spouse loses citizenship for this reason. This constitutes a violation of Art. 9(1) of CEDAW, that the loss of nationality by a spouse may not have any effect on the nationality of the other spouse.⁶⁵

Discrimination against women in nationality is essentially a thing of the past in Europe;the same cannot be said for men, it is still an occurring problem, which states need to address. The category of persons born to a citizen of that country (birth in the actual country) can be problematic for fathers. The report highlights that there are discriminatory provisions against men in Austria, Denmark, Netherlands and Iceland. From the Austrian and Danish nationality laws it is apparent that ‘no citizenship consequences are attached to the recognition of paternity’. There is also no protection against statelessness ‘if the child is born out of wedlock to a father who is a citizen of these countries’⁶⁶. Iceland and Netherlands require proof that the father is biologically related (in the Netherlands if the child has reached the age of seven). The report goes on to make the valid argument that this is in violation of the landmark case Genovese v. Malta.⁶⁷ A 2011 Maltese case before the European Court of Human Rights held that Malta had violated the principle of non-discrimination in maintaining a citizenship law that does not recognise an equal right for men to transmit nationality to their children, violating Article 8 with Article 14 ECHR.⁶⁸ In addition, Luxembourg and Netherlands violate Article 6 (1)(a) ECN⁶⁹ ‘by requiring that the parent is a citizen when his paternity is established, rather than at the moment of the child’s birth’.⁷⁰

The next category ‘Acquisition of citizenship by persons born to a citizen of a country (birth abroad)’ is also, obviously problematic. Austria, Denmark and Sweden provide no protection against statelessness for children born out of wedlock to a father from these countries. Once again this is a violation of the ECtHR ruling in Genovese v. Malta. Moreover, in Iceland ‘proof of the biological link/paternity is necessary when a child is born abroad, also in the Netherlands if the child is older than 7 years at the moment of recognition by a Dutch citizen’.⁷¹ Malta has since corrected its law following the Genovese ruling, how does the situation remain in the other violating states? Austria previously had the same rule as Malta, children born to an unmarried Austrian father and non-Austrian mother did not acquire the father’s nationality even when actually born in Austria. The child must be ‘legitimated’ to gain the nationality.⁷² On 1 August 2013 the amendments to Austrian nationality law came into effect.⁷³ An unmarried father can now transmit his nationality if the Austrian father recognises the child before birth or within eight weeks after the birth. The limitation is that this provision only applies to children born after entry into force of the amendment. In ‘other cases such children will have to apply for citizenship, under less restrictive conditions as before if younger than 14, but even then still obliged to pay the entire fees and, moreover, only if residing in Austria, unless the father is living abroad as well’.⁷⁴ The Austrian country report suggests these ‘differentiations are clearly at odds with the findings of the ECtHR in the case of Genovese’.⁷⁵

Denmark has since reformed its law, previously a child born out of wedlock to a Danish father and a non-Danish mother only acquires Danish nationality if he or she is born in Denmark.⁷⁶ Therefore children born outside to an unmarried Danish man were discriminated against. Since July 2014 a child acquires Danish nationality by birth if either the father/mother is Danish whether married or unmarried. In December 2014 the Danish Parliament also passed a law meaning that Danish citizens can hold dual-nationality without giving up their former citizenship. In addition to this, those who lost their Danish citizenship by gaining other citizenship will have the option to reclaim Danish citizenship during a 5-year period from September 2015- August 2020.⁷⁷

Finland and Sweden also still have some rather concealed discriminatory provisions in their nationality laws. Children born out of wedlock in Sweden to a to a Swedish father and a non-Swedish mother will automatically acquire the father’s nationality. However, when the child is born abroad, the child only acquires the father’s nationality if he registers the child with the consular or diplomatic office of the country of his nationality.⁷⁸ This means that if a woman gives birth abroad, the child is automatically Swedish. But if a Swedish man has a child abroad, he has to be married with the child’s mother and his marriage be recognized by the Swedish state in order for the child to enjoy the rights of being a Swedish citizen.⁷⁹ The situation is the same in Finland.⁸⁰ A father i.e. a male must take additional action to transmit the nationality; therefore it is relatively easy to prevent the child acquiring citizenship. As seen in Genovese v. Malta, the facts of the case highlighted that the father Mr. Genovese had not made any attempt to obtain Maltese nationality for his child. In this sense it is problematic that Finland and Sweden still provide for this type of discrimination in their respective nationality laws. The laws have yet to be amended.⁸¹

Finally within Europe there is the unique case of Monaco, not an EU Member State but a member of the Council of Europe which acceded to CEDAW in 2005, however Monaco made several reservations, one of which is against Art.9 of CEDAW, ‘The Principality of Monaco does not consider itself bound by the provisions of Article 9 which are not compatible with its nationality laws.’⁸² In December 2011, Article 1 of Law No. 1155⁸³ was amended but is still discriminatory in that mothers, unlike fathers, do not have unconditional rights in passing nationality to their children. This is in direct violation of Art.17 of their constitution ‘The citizens of Monaco enjoy equality before the law.  No preferential status or treatment is accorded to any of them.’⁸⁴ Article 3 was amended positively so that Monegasque men and women can now convey their citizenship to foreign spouses equally, following a ten-year waiting period.⁸⁵

Middle East and North Africa (MENA)

The MENA region is where ‘several of the world’s chronic stateless populations’ exist but the legal systems of many MENA countries also leave children of citizens prone to statelessness. ¹⁰⁶ The majority of countries in the region transmit nationality through the father.¹⁰⁷ Some countries do allow for women to pass their nationality if the child’s father is stateless, unknown, or of unknown nationality, however these ‘safeguards’ are commonly not implemented. The laws that allow for children to obtain their mother’s nationality where the father’s identity or nationality is unknown tend to interpreted literally, meaning that the mother genuinely does not know who the father is. These legal provisions don’t cover the circumstances were a woman knows who the father of her child is, but is not married to the father. In the case of adultery or in some cases rape, the child cannot obtain the mother’s nationality because the father is not ‘unknown’.¹⁰⁸ In Iraq, al-Qaeda militants forced young women into marriage often concealing their identity. Many children were born to these militant fathers and Iraqi mothers but the marriages were undocumented. The result being that those children cannot prove their ‘legitimacy,’ and cannot be recognised as Iraqi nationals. These children have no formal documentation and no ‘legal existence’ therefore cannot access essential state services. Their mothers, as well, are subject to social stigma, viewed as single mothers who have had children out of wedlock.¹⁰⁹

The situation in much of the Middle East is exacerbated by the fact that even if all countries did reform their laws to allow women to pass nationality on to their children equally to men, children will still be denied nationality for as long as social stigma and discrimination of women continues in these patriarchal societies. An unwed mother who faces imprisonment or even death for registering her child is unlikely to take the risk. Gender equality in nationality laws is certainly a key step on the road to eradicating statelessness in the MENA region but it is also vital that the international community addresses the stigmatization of unwed parents, particularly single mothers and non-marital children.

As seen above, many positive reforms have been achieved in the MENA region, however a total of eleven countries in the region are listed in the UNHCR survey as not granting equality to women with regard to the right to pass their nationality to their children. In addition to Libya and Mauritania the following countries discussed form part of the eleven mentioned. The nationality law of Qatar is very restrictive in that it does not provide any exception that would allow mothers to confer nationality to their children, even if the consequence is statelessness.¹²⁸ Similarly in Kuwait only fathers can transmit nationality to their children. In the instance that a Kuwaiti mother has a child with an unknown or stateless father, legally speaking the child may be a candidate for Kuwaiti citizenship ‘at majority by Decree based on the recommendation of the Ministry of Interior. However, this is an extraordinary measure that occurs rarely in practice’.¹²⁹ In Lebanon we see the same situation, only a Lebanese father may transmit their nationality, but according to the actual law ‘Children born in Greater Lebanon who do not acquire another nationality are entitled to Lebanese citizenship by affiliation’. ¹³⁰ This should be a safeguard to protect against statelessness, however, ‘because the law does not allow Lebanese mothers to confer their citizenship to their children, it is not clear that it is implemented in practice’.¹³¹

The nationality laws of Jordan, Saudi Arabia, and the United Arab Emirates generally prohibit female nationals married to foreigners to transmit their nationality to their children, however, there some exceptions for children born in the relevant country, in the circumstance that the fathers are unknown, stateless, of unknown nationality or do not recognise the child. ¹³² The situation for Syria is similar again, mothers can confer their nationality on children if the father does not recognise the child or the child would otherwise be stateless. Similarly to many of the countries in the MENA region, there is a safeguard to prevent statelessness among children born in Syria but it is unclear whether or not this is implemented in actual practice. The 1989 amending Citizenship Act of Bahrain allows mothers to pass on their nationality to their children born in or outside the country in the circumstance that the father is unknown or stateless. Under the nationality law of Oman, mothers can pass their nationality on whether the child was born in or outside Oman in the circumstance that fathers are unknown or are former Omani nationals.¹³³ In Iran¹³⁴, only fathers can confer their nationalities on their children regardless of any circumstances including the result of statelessness.¹³⁵

Other unequal practices

The previous sections have focused on women’s inability to pass their nationality equally to their children in various countries across the world. However there are further instances of inequality in an even wider range of countries. The main source relied upon for this general overview of further unequal practices is a recent report by Equality Now¹⁴⁵. The report discusses the links between stereotypical roles of men and women and nationality laws. These discriminatory laws whether or not they originated from colonists have remained in certain countries to reinforce patriarchal roles and norms. For example a woman losing her nationality upon marriage reinforces the idea that women are not ‘independent entities’, she becomes one and the same as her husband. When a woman cannot pass nationality to her children this reinforces the idea that a child ‘belongs’ to the father, even when children live in the home country of their mother.¹⁴⁶ The report compiled a graph charting the different levels of discrimination. From this it is apparent that the most common form is when a married woman cannot pass her nationality equally to her husband, this is in the nationality law/citizenship code of fifty-two countries.¹⁴⁷ The second most common form is that a married woman cannot pass their nationality equally to a child born outside the country, featuring in twenty-seven countries.¹⁴⁸ In the case of an unmarried woman to a child born outside the country, discriminatory provisions exist in twenty-two countries. ¹⁴⁹. Eighteen countries have discriminatory provisions for a married woman to transmit nationality to a child born in the country,¹⁵⁰ followed by sixteen countries where unmarried woman cannot pass to a child born in the country.¹⁵¹Lastly and least common is discrimination of the unmarried father of a child born abroad who cannot pass his nationality without additional requirements in a total of two countries, which has been discussed previously in the paper.¹⁵² We see a significant difference from one end of the spectrum to the other, which highlights the progress yet to me made in making all forms of nationality law equal.

A further practice worthy of note is the restriction of dual nationality, which has the potential to discriminate against women in practice. In a country where dual nationality is forbidden, women may be more likely to feel the effects due to their tendency to live in the country of their spouse. This situation forces women to choose between their own nationality or that of their husband. In the event that a woman chooses to retain her nationality she will suffer in terms of sacrificing the full enjoyment of political, civil, economic and social rights in their husband’s country. Should the marriage come to an end either by divorce or death, some women run the risk of statelessness, and may not be able to exercise their own human rights in their country of origin. In the likely circumstance of ‘administrative delay’ pending the new nationality women are left stateless.¹⁵³ Governments must ensure that marriage or divorce carries no automatic effect on a women’s nationality, but still in some countries it remains, such as Benin, Central African Republic, Comoros, Guinea, Somalia and Togo. For example, in Togo, a foreign woman automatically becomes Togolese on marriage to a Togolese man which is not uncommon and also automatically loses Togolese nationality if she is then divorced, which is a more unusual provision.¹⁵⁴

Already ‘eight years past the UN’s set target date of revoking all sex discriminatory laws, numerous laws that explicitly discriminate against women, including in the area of nationality, are still in force’.¹⁵⁵ Many states do not comply with their own national obligations or international obligations, and until governments address this problem new cases of statelessness are inevitable.

Lack of Retroactivity of Legislation

When nationality laws are amended in order to bring about gender equality and to allow mothers to pass on their nationality, it is of parallel importance that this amendment is granted retroactive effect. Often there will be a ‘transitional period’ following the reform of a nationality law, sometimes for a certain number of years within a specific date range. During this period children or their parents can opt for the nationality of the mother, however, in some circumstances people were not always aware of these requirements and therefore missed chances in gaining citizenship. The issue of ‘transitional arrangements’ and lack of retroactive effect played a role in several European countries in the past. In ‘Austria, Germany and the Netherlands, mothers claimed before the courts that they did not know about transitional arrangements and were not informed of it.’¹⁵⁶ In some countries ‘transitional arrangements’ were substituted with regulations providing retroactive effect, this occurred in Denmark in 1999, Greece in 2001 and the UK in 2002.¹⁵⁷ It is plausible to argue that denying full retroactive effect to amendments of the law constitutes a continuation of gender discrimination in current nationality laws, which do not provide for it.¹⁵⁸ There is certainly not a great deal of English-language literature on the subject and it is an area of citizenship law which remains under researched.¹⁵⁹

However, A 2004 study by the Council of Europe shines perhaps some light on this particular area.¹⁶⁰ The report stated that ‘some work remains to be done in some countries, especially concerning the retroactive effect of certain provisions’.¹⁶¹ The report mentions ‘that in certain countries, women cannot necessarily pass on their nationality to children born before a certain date’. For example in Cyprus ‘children born of a Cypriot mother acquire Cypriot citizenship automatically only if born after 11.06.1999 ’.¹⁶²¹⁶³ In Malta, until August 1989 citizenship could be acquired only through the father. There is no full retroactive effect of the reforms; the new law only goes up to 1964.¹⁶⁴

If we look at the non-European countries that have enacted key reforms to their nationality law recently there is somewhat of a mixed picture, countries such as Egypt¹⁶⁵, Algeria,¹⁶⁶ Sri Lanka¹⁶⁷ and Kenya¹⁶⁸ have granted full retroactive effect. Morocco is subject to certain ‘transition issues’. ¹⁶⁹ Whereas the recent reforms in Sierra Leone ¹⁷⁰(partial reform), Bangladesh (2009)¹⁷¹, Zimbabwe¹⁷² are not fully retroactive and subject to certain restraints. At the furthest end of the spectrum is Ethiopia, despite reforming its nationality law in 2003, providing that ‘any person shall be an Ethiopian national by descent where both or either of his parents is Ethiopian ’ the law is not stated to have retroactive effect. In actual practice those with non-Ethiopian fathers do find it more difficult ‘to obtain recognition of a right to nationality on equal terms’.¹⁷³ To ensure law reforms are actually effective and that lack of retroactive effect does not continue to be a root to statelessness, it is of paramount importance that all governments must facilitate the acquisition of nationality for those who do not benefit from recent reforms in nationality laws because the law is not retroactive or has other stringent requirements.

In addition, discriminatory nationality laws are one of the main causes of statelessness,

which is thought to affect as many as 12 million women, men and children across the

globe.3 Non-discriminatory nationality laws are therefore important for preventing and

reducing statelessness. Despite the progress witnessed in many countries since the adoption of the

Convention on the Elimination of All Forms of Discrimination against Women, laws in

around 30 countries still do not grant women equal rights with men with regard to the

nationality of their children.

1 Women’s Refugee Commission (n2).

2 Mark B. Salter, Rights of Passage: The Passport in International Relations (Boulder, 2003),

3 Miriam Rürup, ‘Lives In Limbo: Statelessness after two world wars’ Bulletin of the GHI Washington, Issue 49 (Fall 2011), 115.

4 Ibid.

5 Enzo Traverso, Im Bann der Gewalt: Der europäische Bürgerkrieg 1914–1945 (Munich, 2008), esp. 38 and 51.

6 Rürup (n 7) 119.

7 League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137, Article 8 states ‘If the national law of the wife causes her to lose her nationality on marriage with a foreigner, this consequence shall be conditional on her acquiring the nationality of the husband’.

8 Karen Knop, ‘Relational Nationality: On gender and nationality in International Law’ in Citizenship today: global perspectives and practices, (eds. Aleinikoff and Klusmeyer)(Brookings Institution Press, 2001) 100.

9 Ibid.

10 American Journal of International Law 1934, Special Supplement p. 61.

11 Ibid.

12 Ibid.

13 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, 

Article 9states:

1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. 2. States Parties shall grant women equal rights with men with respect to the nationality of their children.

14 Knop (n 12) 102.

15 Attorney-General v Dow (2001) AHRLR 99 (BwCA 1992) Judge Amissah at para. 17.

16 Ibid at para. 62.

17 De Groot, Gerard-Rene, Vonk, Olivier;Vink, Maarten Peter; ‘Protection against statelessness: Trends and Regulations in Europe’ (2013) available at: http://hdl.handle.net/1814/30201.

18 ‘Preventing and Reducing Statelessness: The 1961 Convention on the Reduction of Statelessness’ UNHCR publication (2010).

19 UN General Assembly, Convention Relating to the Status of Stateless Persons, 28 September 1954, United Nations, Treaty Series, vol. 360, p. 117

20 UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, vol. 989, p. 175, See, for example, Articles 1(5) and 4(2).

21 Article 4. 1. A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of his parents at the time of the person’s birth was that of that State. If his parents did not possess the same nationality at the time of his birth, the question whether the nationality of the person concerned should follow that of the father or that of the mother shall be determined by the national law of such Contracting State. Nationality granted in accordance with the provisions of this paragraph shall be granted:

(a) at birth, by operation of law, or

(b) upon an application being lodged with the appropriate authority, by or on

behalf of the person concerned, in the manner prescribed by the national law.

Subject to the provisions of paragraph 2 of this article, no such application may be rejected.

2. A Contracting State may make the grant of its nationality in accordance with the provisions of paragraph 1 of this article subject to one or more of the following conditions:

(a) that the application is lodged before the applicant reaches an age, being not less

than twenty-three years, fixed by the Contracting State;

(b) that the person concerned has habitually resided in the territory of the Contract

ing State for such period immediately preceding the lodging of the application,

not exceeding three years, as may be fixed by that State;

(c) that the person concerned has not been convicted of an offence against national

security;

(d) that the person concerned has always been stateless.

22 Art. 1 (3) ‘Notwithstanding the provisions of paragraphs 1 (b) and 2 of this article, a child born in wedlock in the territory of a Contracting State, whose mother has the nationality of that State, shall acquire at birth that nationality if it otherwise would be stateless’.

23 Radha Govil and Alice Edwards, ‘Women, Nationality and Statelessness’ in Nationality and Statelessness under International law, (eds. Edwards and Van Waas) (Cambridge University Press, 2014) 189.

24 De Groot, Gerard-Rene, Vonk, Olivier;Vink, Maarten Peter; (n 21) 98.

25 Ibid. Article 8 ‘If the national law of the wife causes her to lose her nationality on marriage with a foreigner, this consequence shall be conditional on her acquiring the nationality of the husband’.

26 CEDAW Article 9(1) States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.

27 R. Mandal and A. Gray ‘Out of the Shadows: The Treatment of Statelessness under International Law’ The Royal Institute of International Affairs Chatham House (2014), 7.

28 Ibid.

29 Ibid.

30 Recommendation 1081 (1988) on problems of nationality in mixed marriages. Text adopted by the Standing Committee, acting on behalf of the Assembly, on 30 June 1988.

31 Council of Europe, Second Protocol amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 2 February 1983, ETS 149, Article 1: Notwithstanding the provisions of paragraphs 1 and, where applicable, 2 and 5 above, in cases of marriage between nationals of different Contracting Parties, each of these Parties may provide that the spouse, who acquires of his or her own free will the nationality of the other spouse, retains the nationality of origin. Notwithstanding the provisions of paragraph 2 above, where applicable, when a national of a Contracting Party who is a minor and whose parents are nationals of different Contracting Parties acquires the nationality of one of his parents, each of these Parties may provide that he retains the nationality of origin.’

32 Elspeth Guild, The Legal Elements of European Identity: EU Citizenship and Migration Law (Kluwer Law International) (2004) 109.

33 Knop (n 12) 109.

34 Lisa Pilgram , Eudo Citizenship Policy Brief No. 4, European Convention on Nationality (ECN) 1997 and European nationality laws (The Open University), 3, available at: http://eudo-citizenship.eu/docs/policy%20brief%20International%20Law.pdf

35 A. Brysk and G. Shafir , People Out of Place:Globalization, Human Rights and the Citizenship Gap (Psychology Press, 2004)

36 Ibid.

37 Knop (n 12) p.110.

38 Mandal and Gray (n 31) p.7.

39 Ibid.

40 Ibid.

41 Jennie Munday ‘Gendered Citizenship’ Sociology Compass 3/2 (2009): 249–266,250.

42 Jane Wong, ‘The Anti-Essentialism v. Essentialism Debate in Feminist Legal Theory: The Debate and Beyond’ 5 Wm. & Mary J. Women & L. 273 (1999), http://scholarship.law.wm.edu/wmjowl/vol5/ iss2/2

43Ibid.

44 Gary Lawson, ‘Feminist Legal Theories’, 18 HARv. J.L. & PUB. POLY 325, 326-30 (1995).

45 C. A. MacKinnon, Feminism unmodified: Discourses on Life and Law Harvard University Press,(1987).

46 Ruth Lister, in The Blackwell Companion to Political Sociology, ed. K. Nash and A. Scott ‘Citizenship and gender’ (2004) UK: Blackwell Publishing Ltd.,

47 MacKinnon (n 49), 45.

48 M Ntumy, ‘Essentialism and the Search for the Essence of Law’(1990)18 Melanesian Law Journal 64, 64.

49 Deborah L. Rhode, Justice and Gender:Sex Discrimination and the Law, (Harvard University Press, 2009) p.84.

50 Munday, (n 45).

51‘Stateless but not rightless: Improving the protection of stateless persons in Europe’ Keynote Speech by Nils Muižnieks Council of Europe Commissioner for Human Rights, CommDH/Speech(2014) 6 available at: https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2514961&SecMode=1&DocId=2130676&Usage=2

52 C. A . MacKinnon, ‘Feminism, Marxism, Method and the State: Towards Feminist Jurisprudence’ Signs, Vol.8, No.4 (Summer, 1983), pp. 635-658.

53 Z. Albarazi and L. van Waas ‘Towards the abolition of gender discrimination in nationality laws’, Forced Migration Review 46 (2014).

54‘Roundtable Debate: How Gendered Is Citizenship?’Tilburg University Statelessness Program, Prof. Cees Flinterman (CEDAW / UN Human Rights Committee), Ms. Radha Govil (UNHCR) and Prof. René de Groot (comparative nationality law expert). Under the guidance of Sebastian Köhn of the Open Society Justice Initiative, they discussed the historic origins of the unequal nationality rights of men and women, before turning to look at the factors that have contributed to the wave of legal reform that has been achieved across the globe over the past few decades. 

55 Munday, (n 45) p.261.

56 Ibid.

57 See (n 3).

58 ‘Who is stateless in Europe?’ available at: http://www.statelessness.eu/issues/who-stateless-europe [accessed 10/02/15).

59 ‘Proposal for an EU directive on the identification of statelessness and the protection of stateless persons’ Meijers Committee Standing committee of experts on international immigration, refugee and criminal law (2014) p.2.

60 Ibid.

61 European State Parties to the 1954 Convention are Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Montenegro, Netherlands, Norway, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine and the United Kingdom. European State Parties to the 1961 Convention on the Reduction of Statelessness are Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, Finland, Georgia, Germany, Hungary, Ireland, Latvia, Liechtenstein, Lithuania, the Republic of Moldova, Montenegro, Netherlands, Norway, Portugal, Romania, Serbia, Slovakia, Sweden, Ukraine and the United Kingdom.

62 ‘UNHCR announces push to end statelessness worldwide by end-2024’ available at: http://www.unhcr-centraleurope.org/en/news/2014/unhcr-announces-push-to-end-statelessness-worldwide-by-end-2024.html [accessed 17/02/2015]

63 De Groot, Gerard-Rene, Vonk, Olivier;Vink, Maarten Peter; (n 21).

64 Ibid at p.98.

65 Ibid at p.99.

66 Ibid at p.52.

67 Genovese v. Malta, Application no. 53124/09, Council of Europe: European Court of Human Rights, 11 October 2011,

68 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.

Article 8. Right to respect for private and family life-

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14. Prohibition of discrimination – The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

69 Article 6- Acquisition of Nationality

Each State Party shall provide in its internal law for its nationality to be acquired ex lege by the following persons:

a. Children one of whose parents possesses, at the time of the birth of these children, the nationality of that State party, subject to any exceptions, which may be provided for by its internal law as regards children born abroad. With respect to children whose parenthood is established by recognition, court order or similar procedures, each State Party may provide that the child acquires its nationality following the procedure determined by its internal law;

70 Ibid.

71 Ibid at p.58.

72 Par. 7a(1)Staatsbürgerschaftsgesetz).

73 Federal Law amending the Citizenship Law of 1985, Bundesgesetz, mit dem das Staatsbürgerschaftsgesetz 1985 geändert wird, BGBl. I 136/2013.

74J. Stern and G. Valchars, Report on Austria, EUDO Citizenship Observatory (2013) p.43

75 Ibid.

76 (Art. 1(1) Lov om dansk infødsret).

77 L 44 Bill amending the Danish Nationality Act, available at http://www.ft.dk/samling/20141/lovforslag/L44/index.htm

78 Act on Swedish Citizenship Unofficial translation of: Lag om svenskt medborgarskap Swedish Code of Statutes: SFS 2001:82 (With amendments up to and including SFS 2006:222) Acquisition of Swedish citizenship by birth

Section 1

A child acquires Swedish citizenship by birth if

1. the mother is a Swedish citizen,

2. the father is a Swedish citizen and the child is born in Sweden,

3. the father is a Swedish citizen and is married to the child’s mother,

4. the father is deceased but at the time of his death was a Swedish citizen and the child is

born in Sweden, or

5. the father is deceased but at the time of his death was a Swedish citizen and married to the

child’s mother.

79 Lucian Vâlsan ‘By law, Swedish men are 2nd class citizens’ available at:http://www.avoiceformen.com/feminism/feminist-governance-feminism/by-law-swedish-men-are-2nd-class-citizens/ [accessed 14/02/15]

80 Art. 26 Kansalaisuuslaki.

81 G.R. de Groot and O. Vonk ‘Non-discriminatory access to the nationality of the father protected by the ECHR A comment on Genovese v. Malta (European Court of Human Rights, 11 October 2011)

82 Declarations, Reservations and Objections to CEDAW available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en

83 Article 3. Loi n. 1.155 du 18/12/1992 relative à la nationalité

(Replaced by Law No. 1387 of 19 December 2011) 
Monaco Is:

* 1 – Every person born of a Monegasque father unless he has acquired its nationality by declaration pursuant to Article 3;

* 2 – Every person born of a Monegasque born mother who still possessed nationality on the date of birth.

* 3 – Every person born of a Monegasque mother and one of which, the ascendants of the same branch was born in Monaco.

* 4 ° – Any person born of a Monegasque mother who acquired Monegasque nationality by naturalization, for reinstatement or under the provisions of the second paragraph of Article 6 or the fourth paragraph of Article 7 of this Act.

* 5 ° – Every person born of a mother who acquired Monegasque nationality by declaration following a simple adoption.

* 6 ° – Every person born in Monaco of unknown parents.

84 CONSTITUTION DE LA PRINCIPAUTÉ 17 DÉCEMBRE 1962 (modifiée par la loi n° 1.249 du 2 avril 2002)

85 Article 3. Loi n. 1.155 du 18/12/1992 relative à la nationalité

(Replaced by Law No. 1387 of 19 December 2011) 
The alien who marries with Monaco or abroad who marries with Monaco may, under conditions determined by sovereign order, acquire Monegasque nationality statement, on the expiry of a period of ten years from the marriage, provided that: – the community of life with her ​​Monegasque husband has not stopped at the time of the request, unless not followed widowhood remarriage – that spouse has not itself acquired Monegasque nationality by virtue of a previous marriage – that this voluntary acquisition of Monegasque nationality does not have the effect of making him lose his nationality by originally by application of a foreign law or international convention; – that the spouse has kept Monegasque nationality at the time of application.

86Equality Now Report, Campaign to End Sex Discrimination in Nationality & Citizenship LawsPublished: (Revised February 2015.) January 2013 available at: http://www.ohchr.org/Documents/Issues/Women/WRGS/RelatedMatters/OtherEntities/EqualityNowReportNationality.pdf

87 MENA region includes Algeria, Bahrain, Egypt, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Qatar, Saudi Arabia, Syria, Tunisia, United Arab Emirates, Yemen.

88 List of Countries which have signed, ratified/acceded to the Protocol to the African Charter on Human and Peoples’ rights on the rights of women in Africa, available at: http://www.au.int/en/sites/default/files/Rights%20of%20Women.pdf

89 Burundi, Liberia, Madagascar, Sierra Leone, Somalia, Sudan, Swaziland and Togo.

90 Law No. 28 of 22 December 1962 – Somali Citizenship,  22 January 1963, available at: http://www.refworld.org/docid/3ae6b50630.html

91 Swaziland Citizenship Act, 1992 [Swaziland], Act 14/1992, 1 December 1992, available at: http://www.refworld.org/docid/4c5696752.html

92 Ordonnance n° 60 – 064 du 22 juillet 1960 portant Code de la nationalité malgache ( J.O. n°111 du 23.07.60 p.1305 ), modifiée par la loi nº 61-052 du 13 décembre 1961 ( J.O. nº 201 du 23.12.61, p.2260 ), la loi nº 62-005 du 6 juin 1962 J.O. nº 228 du 16.06.62, p. 1075 ), l’ordonnance nº 73-049 du 27 août 1973 ( J.O. nº 934 E.S. du 27.08.73, p. 2713 ) et par la loi nº 95-021 du 18 septembre 1995 ( J.O. nº 2341 du 01.01.96, p.. 3 et 13 ). [Madagascar], 1 January 1996, available at: http://www.refworld.org/docid/4f5473682.html

93The Sierra Leone Citizenship (Amendment) Act, 2006 [Sierra Leone], No. 11 of 2006, 26 October 2006, available at: http://www.refworld.org/docid/481596b42.html

94 UNHCR ‘Background Note on Gender Equality, Nationality Laws and Statelessness’ (March 2014) available at: http://www.unhcr.org/4f5886306.pdf

95 1/013 Act of 18 July 2000 on the reform of the Nationality Code  [Burundi], 1/013, 18 July 2000 available at: http://www.refworld.org/docid/452d01c94.html

96 Constitution de Burundi (consolidated 2005) [Burundi],  18 March 2005, available at: http://www.refworld.org/docid/4c2df0942.html

97 UNHCR, See (n. 102).

98 Article 28, Constitution of the Republic of Liberia, 6 January 1986, available at: http://www.refworld.org/docid/3ae6b6030.html

99 Aliens and Nationality Law (amended 1974) [Liberia],15 May 1973, available at: http://www.refworld.org/docid/4c591e872.html

100UNHCR, (n.102).

101 Act Togolese nationality  [Togo], 11 September 1978, available at: http://www.refworld.org/docid/3ae6b4d02c.html

102 Togo: Constitution de la IVe République [Togo], 14 October 1992, available at: http://www.refworld.org/docid/48ef43c72.html

103 UNHCR, (n.102).

104 The Sudanese Nationality Act 1994 and Sudanese Nationality Act (Amendment) 2011 [Sudan], 10 August 2011, available at: http://www.refworld.org/docid/503492892.html

105

106 Betsy Fisher, ‘Why Non-Marital Children in the MENA Region Face a Risk of Statelessness’ Harvard Human Rights Journal Online (2015).

107 See UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness 2014 (2014) available at: http://www.unhcr.org/4f5886306.html.

108 Fisher, (n.110) p. ….

109 Ibid.

110 Ordinance No. 05-01 of 18 Moharram 1426 corresponding to February 27, 2005 amending and supplementing Ordinance No. 70-86 of 15 December 1970 on the Code of Algerian nationality, 27 February 2005, available at: http://www.unhcr.org/refworld/docid/447aa6514.html.

111 Bronwen Manby, Citizenship Law in Africa A Comparative Study, Open Society Foundations (2010), p. 51, available at: http://www.unhcr.org/4cbc60ce6.pdf

112 Decree No. 12025 of the Year 2004 Concerning Certain Provisions Enforcing Law No. 154 of the Year 2004 on Amendment of Certain Provisions of Law No. 26 of the Year 1975 Concerning the Egyptian Nationality [Egypt], 12025, 25 July 2004, available at: http://www.refworld.org/docid/432aaab74.html 

113 Manby, (n.21) p…..

114 Ibid.

115 Association Démocratique des Femmes du Maroc, ‘We’ve Won a Battle but not the War,’ press release posted 26 January 2007, available at: http://www.learningpartnership.org/citizenship/2007/01/won-battlemorocco

116 Article 9, Maroc: Code de la nationalité marocaine (2011) [Morocco], Dahir n. 1-58-250 du 21 safar 1378, 6 September 1958, available at: http://www.refworld.org/docid/501fc9822.html

117 Manby, (n.21) p. 52.

118 Mounira M. Charrad, ‘Family Law Reforms In The Arab World: Tunisia and Morocco’, Report for the United Nations Department of Economic and Social Affairs (UNDESA) Division for Social Policy and Development Expert Group Meeting, New York, 15 – 17 May 2012

119 République Tunisienne 1998: Art.12 ‘Becomes Tunisian, . . . [if he or she meets all conditions imposed by the Code and makes the request] within one year before reaching the age of majority, a child born abroad from a Tunisian mother and a foreign father’

120Law Number (24) for 2010/1378 On The Libyan Nationality  [Libya], 28 May 2010, available at: http://www.refworld.org/docid/4e2d8bf52.html.

121 De Groot, Rene- Gerard and Vonk, Olivier ‘Non-discriminatory access to the nationality of the father protected by the ECHR A comment on Genovese v. Malta (European Court of Human Rights, 11 October 2011) available at: http://eudo-citizenship.eu/caselawDB/docs/Case%20Law%20Notes/Genovese%20case%20comment.pdf

122 ‘Libya: Step Ahead for Women on Nationality Rights’, September 2, 2010 available at: http://www.hrw.org/news/2010/09/02/libya-step-ahead-women-nationality-rights

123 Ibid.

124 Manby,(n.21) p.53.

125 See (n.126).

126 Brad K. Blitz and Maureen Lynch, ‘Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality’ Edward Elgar Publishing (2011) p.144.

127 Ibid.

128 Qatar: Law No. 38 of 2005 on the acquisition of Qatari nationality [Qatar],  30 October 2005, available at: http://www.refworld.org/docid/542975124.html

129 UNHCR Background Note (n.102).

130 Ibid.

131 Ibid.

132 Ibid.

133 Royal Decree No (3/38), original Arabic version available at: http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=542a76414

134 The Civil Code of Iran.” 1935, Amendments to 1985 available at: http://www.refworld.org/docid/3ae6ad9423.html

135 UNHCR Background Note, (n.102).

136 Brunei Nationality Act [Brunei Darussalam], 4 of 1961, 1 January 1962, available at: http://www.refworld.org/docid/4c56c01d2.html

137Malaysian citizenship can be acquired under provisions of Chapter 1 of the constitution (Malaysia 23 Oct. 2007) available at: http://www.refworld.org/docid/47d6546928.html

138 Nepal Citizenship Act 2063 (2006) [Nepal], Act No. 25 of the year 2063 (2006), 26 November 2006, available at: http://www.refworld.org/docid/4bbca97e2.html 

139 UNHCR Background Note, (n.102).

140 Ibid.

141http://www.perth.uhi.ac.uk/specialistcentres/ruralchild/Documents/Mother%20to%20Child%20Full%20Report.pdf

142 Bahamas: Nationality Act, 10 July 1973, available at: http://www.refworld.org/docid/3ae6b4fc10.html  

143 Barbados Citizenship Act, Cap. 186 (last amended 1982), 30 November 1966, available at: http://www.refworld.org/docid/3ae6b56b8.html

144 UNHCR Background Note

145Ending Sex Discrimination in Nationality and Citizenship Laws, Equality Now Report, (May 2014), (updated February 2015).

146 Ibid at p.2.

147 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, Mali, Mauritania, Morocco, Nauru, Nepal, Niger, Nigeria, Oman, Pakistan, Qatar, Saint Lucia, Saint Vincent & Grenadines, Saudi Arabia, Sierra Leone, Solomon Islands, Somalia, Sudan, Swaziland, Syrian Arab Republic, Tanzania, Thailand, Togo, Tonga, Tunisia , United Arab Emirates, Vanuatu, Yemen.

148 Bahamas, Bahrain, Barbados, Brunei, Burundi, Iran, Iraq, Jordan, Kiribati, Kuwait, Lebanon, Liberia, Libya, Madagascar, Malaysia, Mauritania, Nepal, Oman, Qatar, Saudi Arabia, Sierra Leone, Somalia, Swaziland, Syrian Arab Republic, Tonga, Tunisia, United Arab Emirates.

149 Bahrain, Brunei, Burundi, Iran, Iraq, Jordan, Kuwait, Lebanon, Liberia, Libya, Mauritania, Nepal, Oman, Qatar, Saudi Arabia, Sierra Leone, Somalia, Swaziland, Syrian Arab Republic, Tonga, Tunisia, United Arab Emirates.

150 Bahrain, Burundi, Iran, Jordan, Kiribati, Kuwait, Lebanon, Libya, Madagascar, Nepal, Oman, Qatar, Saudi Arabia, Somalia, Swaziland, Syrian Arab Republic, Tonga, United Arab Emirates.

151 Bahrain, Burundi, Iran, Jordan, Kuwait, Lebanon, Libya, Nepal, Oman, Qatar, Saudi Arabia, Somalia, Suriname, Syrian Arab Republic, Swaziland, United Arab Emirates.

152 Denmark, United States of America.

153Report of the Office of the United Nations High Commissioner for Human Rights, ‘Report on discrimination against women on nationality related matters, including the impact on children’ A/HRC/23/23 (March 2013) available at: http://www.refworld.org/pdfid/51a5bdf74.pdf

154 ‘Citizenship Rights in Africa Initiative’ available at: http://citizenshiprightsinafrica.org/themes/discrimination/gender-discrimination/

155 See (n.102) at p.13.

156 Rainer Bauböck, Eva Ersbøll, Kees Groenendijk, Harald Waldrauch ‘Acquisition and Loss of Nationality: Comparative Analyses – Policies and Trends in 15 European Countries’ Amsterdam University Press (2006) p.344.

157 Ibid.

158 Ibid.

159 R de groot the main scholar, 1999, find the paper de Groot, G. R. 1999. Vingt et un ans après : de gelijke behandeling van man en vrouw in het nationaliteitsrecht. Edited by E. H. Hondius. In De meerwaarde van rechtsvergelijking : Opstellen aangeboden aan prof. mr. H. U. Jessurun d’Oliviera, Deventer: Kluwer.

160 The study received replies from Andorra, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Latvia, Lithuania, Luxembourg, Malta, Norway, Poland, Portugal, Romania, Serbia and Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Former Yugoslav Republic of Macedonia, Canada, Japan, Holy See.

161Manuela AGUIAR, ‘Nationality rights and equal opportunities’ Report | Doc. 10070 | 09 February 2004

162 Ibid.

163The provisions of subsections (1) and (2) do not apply in the case of a person born in Cyprus or in any other foreign country between 16 August 1960 and 11 June 1999, if that person would have acquired the citizenship of the Republic because, at the time of his birth, his mother was, or was entitled to acquire the citizenship of the Republic:

164 Aguiar, (n.159).

165 In 2004 the law was reformed with retroactive effect and any child of an Egyptian mother born before or after the date of entry into force of the amendment became entitled to Egyptian nationality

166 The new provision provides that a person is considered Algerian if he/she is born to an Algerian father or an Algerian mother. The new nationality law provisions apply with retroactive effect.

167 Citizenship (Amendment Act No 16) 2003, Section 5A (1) a ‘any person who is born within or outside Sri Lanka, or whose mother at the time of his birth is a citizen of Sri Lanka…shall be eligible to obtain the status of a citizen of Sri Lanka’

168 The new Kenyan Constitution which came into force in 2010 addressed this problem by replacing the previous provision which discriminated against women with the following:

“A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in

Kenya, either the mother or the father of the person is a citizen.”

The 2010 Kenyan Constitution applies this provision with retroactive effect so that children born to

Kenyan mothers abroad before the new Constitution came into force are also to be considered Kenyan

nationals.

169 Gender discrimination also still affects the provision of the nationality code providing for Moroccan nationality to be given to children born in Morocco of foreign parents who were themselves also born in Morocco. This provision applies in a gender-neutral way only if the parents were born after the law came into force; all other children born in Morocco (thus including all those being born today) can claim nationality only if their father was born in Morocco, is an Arabic-speaking Muslim, and comes from a country where Arabic-speaking Muslims are in the majority.

170 Following reform in 2006, the laws of Sierra Leone provide that a child born in Sierra Leone after 1971 acquires Sierra Leonean citizenship by birth if their father, mother or any grandparent was born in Sierra Leone. Children born abroad, however, only acquire Sierra Leonean citizenship by descent if their father is a Sierra Leonean citizen.

171 The Citizenship (Amendment)

Act, 2009, Subject to the provisions of section 3 a person born after the commencement of this Act, shall be a citizen of Bangladesh by descent if his ⁴[ father or mother] is a citizen of Bangladesh at the time of his birth:

172 In 2009, Zimbabwe adopted the Constitution of Zimbabwe Amendment (No. 19) Act, 2009, as part of the process of installing a government of national unity. The amendment act also made important changes in relation to the citizenship, especially by removing gender discrimination. For citizenship from birth, the current situation under the Constitution is that: • a person born in Zimbabwe is a citizen by birth if either of his or her parents or grandparents is or was a citizen of Zimbabwe. • a person born outside the country is a citizen by birth if either of his or her parents is or was a Zimbabwean citizen ordinarily resident in Zimbabwe or working outside Zimbabwe for an international organisation or for the Zimbabwean state. removed discrimination on grounds of gender and marital status of the parents in 1996, but only with effect from that date: children born between 1980 (attainment of majority rule) and 1996 could not claim citizenship if only their mother was Zimbawbwean unless born out of wedlock.

173 Citizenship Law in Africa A Comparative Study By Bronwen Manby p.45

1 Remarks by a Nubian elder in Kenya quoted in UNHCR, ‘Media Backgrounder: Millions Are Stateless, Living in Legal Limbo’, 2011 available at: http://www.unhcr.org/4e54ec469.html [accessed 12 February 2015]

2 Women’s Refugee Commission, Our Motherland, Our Country: Gender Discrimination and Statelessness in the Middle East and North Africa, June 2013, ISBN:1-58030-112-6, available at: http://www.refworld.org/docid/51c02a084.html %5Baccessed 20 March 2015]

3 UNHCR ‘Background Note on Gender Equality, Nationality Laws and Statelessness’ (March 2014) Bahamas, Bahrain, Barbados, Brunei, Burundi, Iran, Iraq, Jordan, Kuwait, Lebanon, Liberia, Libya, Madagascar, Malaysia, Mauritania, Nepal, Oman, Qatar, Saudi Arabia, Sierra Leone, Somalia, Sudan, Suriname??, Swaziland, Syria, Togo, UAE.

4 Bahamas, Bahrain, Bangladesh, Barbados, Benin, Brunei, Burundi, Cameroon, Central

African Republic, Comoros, Congo (Republic of), Denmark, Egypt, Guatemala, Guinea,

Iran, Iraq, Jordan, Kiribati, Kuwait, Lebanon, Lesotho, Liberia, Libya, Madagascar, Malawi,

Malaysia, Mali, Mauritania, Morocco, Nauru, Nepal, Niger, Nigeria, Oman,

Pakistan, Qatar, Saint Lucia, Saint Vincent & Grenadines, Saudi Arabia, Sierra Leone,

Solomon Islands, Somalia, Sudan, Swaziland, Syrian Arab Republic, Tanzania,

Thailand, Togo, Tunisia, United Arab Emirates, United States of America, Vanuatu,

Yemen.