Statelessness Working Paper Series No. 2015/02 From an international perspective, Nepal is one of the 27 countries in the world that does not provide equal conditions for women to confer nationality to their children6. Despite the strong democratic movements and the end of the monarchy after the civil war in 2006, patriarchal culture and way of thinking are still predominant in the country. It is customary that married women are allowed to obtain a passport only if their husband, father or guardian approve of this step, even though the Supreme Court denounced this practice in 20057. The challenges Nepalese women face to receive their citizenship certificate or to transfer citizenship by descent to their offspring are contrary to international law and prevent Nepal from taking further steps towards an equal and just society. The country has ratified numerous international human rights treaties intended to protect human dignity and strengthen equality8, but the state has failed to fulfil its legal obligations. To give an example, the country is violating its obligations under the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), whereby in accord with Article 9 the state must safeguard against gender discrimination and statelessness in national law. Moreover, Nepal is also in violation of Articles 7 and 8 of the Convention on the Rights of the Child (CRC), which stresses the importance of child registration and the prevention of childhood statelessness. 2. Who is most likely to suffer from Nepal’s discriminatory citizenship laws? Statelessness in Nepal is a challenge emerging entirely out of human decisions. The operation and interpretation of Nepali law is mainly conducted by male officials, who are in the position to make arbitrary decisions regarding citizenship on a daily basis, with serious consequences for people’s lives. The new Constitution, which replaced the 2007 Interim Constitution, is strongly debated by human rights and women’s rights organizations9 that are concerned by the continuous legal discrimination and marginalization of women. The Constituent Assembly did not close the legal gap between men’s and women’s citizenship rights. Despite the replacement of the and-formulation by the or-formulation in Article 11.2.b of the new Constitution, meaning that fathers or mothers are able to pass on their citizenship to their offspring, women still suffer from gender inequality. As is often the case, the devil lies in the detail. According to Article 11.3 Nepali women should both establish evidence of the citizenship of the child’s father and that the offspring was born in Nepal in order to obtain citizenship by descent10. This constraint applies only for the children of Nepali women and not of Nepali men. This signifies that sons and daughters of mothers who suffered rape, migrated to other countries, were trafficked, abandoned by their boyfriends or husbands, married to foreigners or who are stateless and/ or are in relationships with stateless men or refugees, can expect rejection of applications on behalf of their children for Nepali citizenship by descent. Moreover, women could feel forced to stay with their husbands as long as they have not applied for the children’s citizenship 6 UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness (2014). Lily Thapa v. Government of Nepal, Writ no. 34 of 2061 B.S, decided on December 15, 2005. 8 International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocols, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of all forms of Racial Discrimination (CERD), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of Persons with Disabilities (CRPD). Retrieved 15.07.2015 from https://www1.umn.edu/humanrts/research/ratification-nepal.html 9 Forum for Women, Law and Development (FWLD), the Feminist Dalit Organization (FEDO), Women`s Rehabilitation Centre (WOREC Nepal) are amongst other women rights organizations that peacefully protested against gender discriminating provisions of the 2015 Constitution. Retrieved 29.10.2015 from http://kathmandupost.ekantipur.com/news/2015-0903/rights-activists-begin-hunger-strike.html and http://fedonepal.org/women-hunger-strike-for-mother-s-name 10 Nepal Law Society, International Institute for Democracy and Electoral Assistance (IDEA) and United Nations Development Programme (UNDP). Unofficial Translation of the Constitution of Nepal 2015. 7 2