7.
Moreover, the Treaty Act of Nepal stipulates that, “In case of the provisions of a treaty, to which Nepal
or the Government of Nepal is a party upon its ratification, accession, acceptance or approval by the
Parliament, inconsistent with the provisions of prevailing laws, the inconsistent provision of the law
shall be void for the purpose of that treaty, and the provisions of the treaty shall be enforceable as
good as Nepalese laws.”4 Nepal therefore is obligated to treat the provisions of those international
instrument as good as domestic laws. Furthermore, the Constitution5 requires the state to implement
international treaties, agreements, to which Nepal is a party.6
PROBLAMATIC PROVISIONS IN THE CITIZENSHIP LAWS IN NEPAL
8.
Despite the strong international obligations and assertions by the Government of Nepal the
Constitution of Nepal7 an estimated six million individuals lack citizenship documentation, although
the majority of these would be eligible for Nepali citizenship under local law.8 The Constitution still
includes several articles pertaining to nationality that discriminate on the basis of gender, and that are
internally contradictory with other articles of the Constitution, which enshrine non-discrimination
and the right to citizenship9 on one hand and on another hand contravene the rights guaranteed by
the CEDAW10 and can lead to statelessness when fathers are stateless or also unable to confer their
nationality on their children.
9.
The Article 10(1) of the Constitution11 states that no citizen of Nepal may be deprived of the right
to obtain citizenship. However, in the absence provision of right to remedy in the violation of this
provision, it is remained merely as discretional. Further, the Article 11(2) (b) of the Constitution12
states that any person whose father or mother was citizen of Nepal at the time of birth is a citizen by
descent. However, this provision is later contradicted by Articles 11(3), 11(5) and Article 11(7).
10.
The Article 11(3) requires both the 'father and mother' to be citizens of Nepal for a child to acquire
citizenship by descent in cases where one of the parents acquired citizenship by birth, preventing
Nepali women to independently transfer her citizenship to their children. Similarly, the Article 11(5)
states that a Nepali woman only retains the right to pass nationality by descent if her child is born and
resided in Nepal and “whose father is not traced,” with condition that the citizenship of the child to
be converted into naturalized if the father is known to be a foreigner. Further, the Article 11(7) states
that the child of a Nepali woman married to a foreign man may only acquire naturalized citizenship
if the child has permanently resided in Nepal and has not acquired citizenship of father’s country.
In addition to contradicting Article 11(2)(b), these provisions further violate Nepali citizens’ right to
equality before the law and equal protection the law as well as equal lineage right of women without
gender-based discrimination, as enshrined in the Article 18 and 38 of the Constitution.13
11.
The Constitution14 further discriminates against women with regard to the conferral of nationality on
foreign spouses, a right reserved for Nepali men and denied to Nepali women. The Constitution15 where
a foreign woman married to a Nepali man may apply for citizenship, if she wishes, with a marriage
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
3
Section 9 (1), the Treaty Act, 2047 (1990) available at: http://www.lawcommission.gov.np/en/archives/9646
The Constitution available at: http://www.lawcommission.gov.np/en/archives/category/documents/prevailing-law/constitution/constitution-of-nepal
Article 51 (b)(3), the Constitution of Nepal
The Constitution of Nepal, 2015 available at: http://www.lawcommission.gov.np/en/archives/category/documents/prevailing-law/constitution/constitution-of-nepal
Acquisition of Citizenship Certificate in Nepal: Estimation and Projection (2015), Forum of Women, Law and Development (FWLD)
also reported in “2019 Country Reports on Human Rights Practices: Nepal” (2019), U.S Department of State available at : https://
www.state.gov/reports/2019-country-reports-on-human-rights-practices/nepal/
Nepal Citizenship Act, 2006, available at: http://www.lawcommission.gov.np/en/archives/category/documents/prevailing-law/
statutes-acts/nepal-citizenship-act-2063-2006
Article 9 (2), the Convention on the Elimination of All Forms of Discrimination against Women
The Constitution of Nepal
The Constitution of Nepal
The Constitution of Nepal
The Constitution of Nepal
The Constitution of Nepal