Ending Nepals Citizenship Problem

1
Ending Nepals Citizenship Problem

• Ensuring Full Equal Access to Citizenship
• in the New Constitution
• Amit Sen and Luma Singh Bishowkarma
• UNHCR Nepal
• Presented at the Centre for Constitutional
  Dialogue (CCD)
• 8 October 2009

2
Nepals Citizenship Problem

• 1995 - Government established the Dhanapati
  Upadhaya Commission to study the problem.
• 1995 - 3.4 million Nepalis lack Citizenship
  Certificates (Nagarikta) and access to
  corresponding rights.
• 2007-2008 - 2.6 million Citizenship Certificates
  issued through mobile distribution teams.
• 800,000 persons remain without Citizenship
  Certificates (at least), as per Dhanapati Report.

3
Importance of the Citizenship Certificate
(Nagarikta)

• Persons lacking Citizenship Certificates are
• considered de facto Stateless by UNHCR
• as they lack full access to their rights as
  Citizens,
• including the ability to
• Apply for government jobs
• Open bank account
• Register a business or NGO
• Enforce property rights
• Register birth, marriage, death
• Enroll in higher education
• Acquire a passport
• Obtain public benefits including those for the
  elderly, widowed, disabled, etc.

4
Problems Remain with Existing Laws Including
the Interim Constitution (2007)

• I. Discrimination
• Gender Discriminatory Laws
• Other Discriminatory Practices
• II. Other Provisions in Conflict with
  International Standards
• Placing persons at added risk for statelessness,
  especially children.

5
International LawStandards and Obligations

• Core Principles
• No discrimination on the basis of gender, caste,
  race, ethnicity, etc.
• All children have the right to a Nationality.
• States must take appropriate action.

6
International LawTreaties Ratified by Nepal

• Convention on the Elimination of Racial
• Discrimination (Article 5)
• Right to Nationality without discrimination as to
  race, color, ethnicity, or national origin.
• International Covenant on Civil and
• Political Rights (Article 24)
• Every child shall be registered at birth by the
  Government, and every child has the right to
  acquire a Nationality.

7
Treaties Ratified by Nepal

• Convention on the Rights of the Child
• (Article 7)
• Child shall be registered by the Government at
  birth.
• Child shall have a right to acquire a
  Nationality.
• States have an obligation to take action in
  instances where the child would otherwise be
  stateless.

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Treaties Ratified by Nepal

• Convention on the Elimination of
• Discrimination Against Women (Article 9)
• Women have equal rights with men to acquire,
  change, or keep their nationality.
• Women have equal rights with men with respect to
  the nationality of their children.
• Getting married should not restrict a womans
  rights regarding her citizenship.

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I. Addressing Discriminatory Laws

• Interim Constitution (2007)
• 1. Denies Nepali women the right to convey
  Citizenship to foreign husbands.
• 2. Places additional burdens on children of
  Nepali women married to foreign husbands.
• Citizenship Certificate Distribution
• Directives (2006)
• 3. Requires married women to obtain Citizenship
  Certificate and Verification (Sanakhat) of
  Husband or Father in law.

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Interim Constitution (2007)

• 1. Nepali men can convey Citizenship to
• foreign wives.
• But Nepali women do not enjoy the same right
• to convey Citizenship to foreign husbands.
• Recommendation
• Persons of foreign nationality married to a
  Nepalese citizen may acquire naturalized
  citizenship, pursuant to existing laws.
• This is gender-neutral language, and affords
  Nepali women and men equal rights.

11
Interim Constitution (2007)

• 2. Nepali men automatically pass Citizenship to
• their children, even in cases of marriage to
  foreign
• wives.
• But Nepali women married to foreign men do not
  have
• the same right. Their children must apply for
  naturalized
• Citizenship, only available if it can be proved
  that the
• child
• Born in Nepal
• Residing Permanently in Nepal
• Has No other Nationality via Father
• This penalizes children of mixed marriages.
  Difficult to
• obtain the documents needed to satisfy
  conditions.
• Result Child is at greater risk for
  Statelessness.

12
continued

• Recommendation
• Use language of Citizenship Act (2006)
• A person shall be a Nepali citizen by ancestry
  if his/her father OR mother is a Nepali citizen
  at the time of his/her birth.
• Remove the requirement that children of Nepali
  women married to foreign men must apply for
  naturalization and satisfy additional
  conditions
• Born in Nepal, Residing in Nepal, No Other
  Nationality

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Citizenship Certificate Distribution Directive
(2006)

• 3. Married Women are required to submit
  additional
• documents to obtain a Citizenship Certificate
• Proof of Marriage Registration
• Citizenship Certificate of Husband or Father in
  Law
• Voucher (Sanakhat) by Father/Mother in Law or
  Brother in Law
• But these requirements are NOT imposed on men.
• Makes married women dependent on husband or
• husbands family members to establish her
  Citizenship.
• Result Impedes women from obtaining proof of
  their
• Citizenship, and enjoying associated Rights.

14
continued

• Recommendation
• Remove requirement that married women must
  produce Nagarikta of husband /father in law.
• Remove requirement that married women must
• obtain Voucher (Sanakhat) of Husband or member
  of Husbands family.
• Allow married women to link their applications
  for a Citizenship Certificate to either their
  natal OR marital family.
• NOTE Proof of marital status can be a protection
  measure in certain circumstances.

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II. Provisions in Conflict with International
Standards

• Not Necessarily Discriminatory
• But Place Persons at Additional Risk for Becoming
  Stateless.
• Heightens Risk of Social, Economic, Political
  Exclusion.

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The Right to Citizenship by Birth in Nepal

• The Interim Constitution (2007) established the
  Right to Citizenship by Birth in Nepal
• Any person born and living permanently in Nepal
  before the end of Chaitra, 2046 mid April, 1990
  
• shall acquire the citizenship of Nepal by birth
• in accordance with existing laws. Section
  8(5)
• However, the Interim Constitution set this right
  to expire in November 2008.
• Recommendation
• Preserve the Right to Citizenship by Birth in
  Nepal
• Jus Soli is an important means to ensuring full
  access to Citizenship and preventing
  Statelessness.

17
Allowing Dual Nationality A Best Practice

• Nepal currently prohibits its citizens from
  acquiring dual nationality.
• This creates a risk of Statelessness when
  acquisition of the second nationality becomes
  uncertain
• Recommendation
• States are encouraged to either
• Permit Dual Nationality
• - OR -
• 2. Ensure Nepali Nationality is NOT Revoked
• Until Another Nationality has been Fully
  Acquired.

18
Thank You

• UNHCR Has Developed Model Language on Preventing
  Statelessness in Nepal
• Will be Made Available in Nepali and English
• UNHCR is available for further consultation.