AHMR African Human Mobilty Review - Volume 8 No 3, SEP-DEC 2022
contain provisions depriving children born to Swazi women and foreign husbands
of nationality, hence increasing their risk of statelessness’.99 These examples indicate
that there are ongoing concerns with gendered dimensions of statelessness in the
region.
Several ‘soft law’ normative developments in international human rights law
also reflect greater attention to the unique gender implications of statelessness, again
with focus on discriminatory nationality laws. This shift is reflected in international
jurisprudence that has ruled against gender-discriminatory nationality laws.100
Likewise, highlighting the impact of gender-discriminatory nationality laws, the UN
Human Rights Council issued a Resolution on the right to a nationality for women
and children in 2012.101 The Resolution calls for states to refrain from enacting
gender discriminatory nationality legislation. It also calls on states to reform any
discriminatory legislation to ensure women’s equal rights to confer nationality on
their children and to retain their own nationality status in marriage.102 With a similar
focus, the UNHCR’s Global Action Plan to End Statelessness, launched in 2014,
includes a specific goal to remove gender-discriminatory nationality laws (Action
3).103 However, the Action Plan does not refer to any other aspects of gender related to
statelessness. In contrast, the CEDAW Committee has focused more broadly on this
issue in its jurisprudence. Significantly, the CEDAW Committee’s approach includes
a more comprehensive focus on indirect discrimination and gendered impacts on
stateless women, specifically in its General Recommendation 32.104
In conclusion, there is a robust body of international human rights law,
binding in the Southern African region, with direct application to statelessness issues,
enshrining the right to nationality, gender equality and non-discrimination. Further,
the gendered implications of gender-discriminatory nationality laws are recognised
by CEDAW and various normative developments. Attention to other aspects of
gender-based discrimination, especially the impacts of indirect discrimination, have
received limited attention, although the CEDAW Committee points to the impacts
of this issue. However, as discussed in the preceding section, there continues to be a
significant gap between these legal protections and practice.
(b) Locating the gender gaps in international laws on statelessness
All sixteen SADC member states have ratified CEDAW: United Nations Treaty Collection ‘Ratification Status for CEDAW’ available at https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CEDAW&Lang=en,
accessed on 11 November 2022.
98
CEDAW Committee ‘Concluding observations on the sixth periodic report of Namibia’ (2022) UN Doc CEDAW/C/
NAM/CO/6 at para 36.
99
CEDAW Committee ‘Concluding observations on the combined initial and second periodic reports of Swaziland’
(2014) UN Doc CEDAW/C/SWZ/CO/1-2 at para 28.
100
See, for example, OC-4/84 Advisory opinion on proposed amendments to the naturalization provision of the Constitution of Costa Rica IACtHR Series A 4 (1984); Genovese v Malta Application No 53124/09 Judgment 11 October 2011.
101
Human Rights Council ‘Resolution 20/4, The right to a nationality: Women and children’ (16 July 2012) A/HRC/20/L.8.
102
Ibid paras 3–6.
103
UNHCR Global Action Plan op cit note 22 at 12.
104
CEDAW GR 32 op cit note 6.
105
1954 Convention op cit note 14.
97
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