2021 Statelessness & Citizenship Review 3(2) Constitution and general international law treaties. Article 9(2) CEDAW provides that states parties shall grant women equal rights with men with respect to the nationality of their children. Similarly, art 7 CRC provides for children to have (amongst others) the right to acquire a nationality and imposes an obligation upon states parties to implement these rights in accordance with their domestic laws ‘and their other obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless’. While the reservations entered regarding both provisions are not identical, it is notable that a common reason cited in both concerns their incompatibility with the Constitution. 23 It follows, therefore, that the Malaysian constitutional settlement vis-à-vis citizenship remains uninfluenced (insofar as the aforementioned treaties are concerned) by international law, and the courts are unlikely to accept any arguments premised solely upon developments in that jurisdiction. In the context of statelessness cases, some practitioners opine that the courts adopt a dim to negative view of the invocation of human rights arguments in submissions. 24 For the purposes of this article, the adoption of the Nottebohm ‘genuine and effective link’ principle into the s 1(e) test thus necessitates a bridging of this gap between constitutional interpretation and international law. Malaysia is also a signatory to the Universal Declaration of Human Rights (‘UDHR’), 25 which recognises the right to a nationality in art 15. However, the Federal Court in Mohd Ezam bin Mohd Noor v Ketua Polis Negara rejected the argument that the UDHR has been effectively incorporated into Malaysian law so as to be relied upon in interpreting the Constitution. 26 In doing so, the court distinguished between the declaratory nature of the UDHR and binding treaties, leaving open the question of whether the latter could have legal effect domestically. This distinction was relied upon in Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors (‘Noorfadilla’) when interpreting art 8(2) of the Constitution in the light of CEDAW, but it is argued that Noorfadilla is an exceptional case since art 8(2) was explicitly amended to give effect to Malaysia’s CEDAW obligations (and to that extent can be deemed to have been incorporated into domestic law). 27 The position is less clear when considering the application of customary international law in Malaysia. In English law, the doctrine of incorporation applies such that customary international law is generally treated as a source of the common law without the need for specific incorporation, save for international crimes (which must be incorporated by statute). 28 It is presumed by the courts that parliament intends to legislate consistently with any applicable international law 23 24 25 26 27 28 See ‘8. Convention on the Elimination of All Forms of Discrimination against Women: Reservations and Declarations — Malaysia’, United Nations Treaty Collection (Web Page, 20 October 2021) <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV8&chapter=4&clang=_en>; ‘11. Convention on the Rights of the Child: Reservations and Declarations — Malaysia’, United Nations Treaty Collection (Web Page, 20 October 2021) <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV11&chapter=4&clang=_en>. Jamie Liew, ‘Homegrown Statelessness in Malaysia and the Promise of the Principle of Genuine and Effective Links’ (2019) 1(1) Statelessness and Citizenship Review 95, 102. Universal Declaration of Human Rights, UN Doc A/810 (10 December 1948). [2002] 4 MLJ 449. [2012] 1 MLJ 832. See R v Jones (Margaret) [2006] UKHL 16. 314