“Everyone has the right to a nationality”

Gender discrimination and statelessness in Europe

29 May 2012 | Laura van Waas, Statelessness Programme

Discrimination is one of the major underlying causes of statelessness around the world. An unequal right for men and women to acquire, retain or transmit citizenship is one form that discrimination can take in nationality legislation. Where such gender inequality is found, the risk of statelessness – especially for women and children – is severely heightened. For instance, where a mother is not entitled to pass her nationality to her child, because this right is reserved for men, the child could be left stateless if the father himself is stateless, deceased, unknown or for some reason unable to transmit his nationality.

While women historically found themselves in a less favourable position than men in terms of nationality rights in most countries, legal reform has swept the globe over the course of the past few decades. The general human rights principle of gender equality now receives widespread recognition and has resulted in a widespread leveling out of the nationality rights of men and women. Yet, a survey published by UNHCR in early 2012 identified more than 25 countries in which severe pockets of gender discrimination remain in the nationality law. That new cases of statelessness can and are emerging thanks to these laws is a real and pressing concern.

At first glance, the aforementioned survey would suggest that Europe is exempt from this particular statelessness challenge: none of the countries in which serious problems were identified are located in the region. However, such a conclusion is sadly premature. In fact, both gender discriminatory nationality policy and the threat of statelessness resulting from the unequal nationality rights of men and women are relevant issues in Europe. Indeed, in 2011, the European Court of Human Rights was forced to rule 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. And there are other countries across Europe where men face similar difficulties in passing on their nationality, if their children are born out of wedlock, which could lead to statelessness.

Meanwhile, even though the two dozen plus countries that continue to discriminate against women in their nationality laws are located outside Europe, this region receives migrants from all around the world. Consequently, Europe is the birthplace of many children whose mothers are not entitled to pass on their nationality under the law of their country of origin. If, for whatever reason, the father is also unable to offer a nationality, the child runs a real risk of statelessness. This means that, as long as gender discrimination in nationality rights is an issue worldwide, it will be a significant factor in putting European states’ own safeguards against childhood statelessness to the test.

In recognition of the continuing role played by gender discrimination in exposing women and children to statelessness, a roundtable debate on the question “How gendered is citizenship?” was convened by the Statelessness Programme at Tilburg University in April 2012. The invited experts were: 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 – with European countries playing a major part in exporting such policies around the world during their colonial rule – before turning to look at how the more recent legal reforms have been achieved. They also provided a more detailed commentary on the link between gender discrimination and statelessness, the role of various UN bodies in helping states to address these issues and areas in which further research and action is needed. A full video of this rich debate has been made available online and can be viewed below. Although the film is rather lengthy, it may be a helpful teaching resource and some discussion questions to help guide the viewer can be found here.

 

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