Women’s rights: gender equality in nationality law
Earlier this week we discussed the conclusions of an IMF study about what kind of citizenship law results in the best economic development. The study ended with a number of topics that the IMF also thought merit investigation:
Further research could study the various aspects through which citizenship laws impact economic development separately—its impact on investment for instance. Another challenge going forward could be to study the impact of citizenship laws on various institutions—family law (e.g., rules of inheritance, women’s rights), commercial law and labor regulations for instance.
The position of women in nationality law certainly merits further attention and has luckily greatly improved over the last 50 years. Originally, all States which provided for an acquisition of nationality by descent (iure sanguinis) almost exclusively applied ius sanguinis a patre (by the paternal line); only in exceptional circumstances was ius sanguinis a matre (by the maternal line) relevant (e.g. in the case of a child born out of wedlock and not recognized by a man). In practice, however, most children had the same nationality as the father and mother, because women lost their own nationality at the moment of marriage and at that moment acquired the nationality of their husband.
This system was called the unitary system in the literature. During the 20th century this system was gradually replaced by the dualist system which allowed women to possess their own independent nationality. Thus, in 1975 the rule under which an Italian woman would lose Italian nationality upon marrying a foreigner was declared unconstitutional by the Italian Constitutional Court. In the Netherlands, and in accordance with the European trend at the time, the 1985 Citizenship Act that is currently in force introduced a dualist system: children would henceforth also acquire the nationality of the mother at birth.
Recent studies of nationality law on the Asian continent show that the Asian countries also followed this trend. Gender equality was introduced in the following years: Bangladesh (2008), China (1980), India (1992), Japan (1985), Pakistan (2000), South Korea (1998), Sri Lanka (2003) and Taiwan (2000 but with retroactive effect to 1980).
While gender discrimination in nationality law has therefore been removed in most countries since the 1970s, it is still prevalent in the Middle East and North Africa (MENA) region. According to Zahra Albarazi, ‘more than half of the 25 countries worldwide where women cannot pass their nationality to their children on an equal basis to men are found in the MENA region’. The United Nations High Commissioner for Refugees (UNHCR) makes the following subdivision:
· Nationality laws which do not allow mothers to confer their nationality on their children with no, or very limited, exceptions: Brunei Darussalam, Iran, Kuwait, Lebanon, Qatar, Somalia and Swaziland;
· Nationality laws that have some safeguards against the creation of statelessness (for example making exceptions for mothers to confer nationality if the father is unknown or stateless): Bahamas, Bahrain, Barbados, Burundi, Iraq, Jordan, Kiribati, Liberia, Libya, Malaysia, Nepal, Oman, Saudi Arabia, Sudan, Syria, Togo and United Arab Emirates.
· Nationality laws that limit the conferral of nationality by women but provide for additional guarantees to ensure that statelessness will only arise in very few circumstances: Mauritania.
Thanks to the Global Campaign for Equality Nationality Rights this topic will likely remain on the political agenda in the coming years. The campaign ‘mobilizes international action to achieve law reform in the 25 countries that prevent mothers from conferring their nationality on their children on an equal basis with fathers; and to achieve law reform in the 50+ countries which deny women equal nationality rights with men, including conferral of nationality to non-national spouses’.
Author: Dr. Olivier Vonk