Bronwen Manby (European University Institute)
Explicit discrimination in the substantive provisions of citizenship law is increasingly rare. This is true not only of discrimination based on sex in the transmission of citizenship to children and spouses, but also of discrimination based on race, religion, ethnicity, language and similar characteristics. The GLOBALCIT Citizenship Law Dataset, of which an updated version (v2) with data up to the end of 2021 will be launched on 16 May, allows us to analyse the provisions in national law in greater comparative detail than ever before – and the intention is gradually to add coding for the earlier versions of the laws, enabling the trends to be tracked over time, as is already the case for dual citizenship.
Discrimination in the application of citizenship law in practice of course remains pervasive – as numerous reports of UN agencies and others demonstrate. But even though the coding of laws cannot capture this broader universe of discrimination faced by those whose faces and names do not fit the ‘expected’ profile of a citizen in any country, the dataset still provides us with insights into the current patterns of inclusion and exclusion around the world.
Discrimination based on sex
One of the most striking trends in the development of citizenship laws over the past decades is the rapid removal or reduction of discrimination based on sex, especially in transmission to children – matched only by the trend of acceptance of dual citizenship, often the generator of that parallel development. The GLOBALCIT dataset, visualised in Figure 1, shows that at the end of 2021 there were only 22 countries (out of 191 countries included in the Dataset) that discriminated on the basis of sex in the transmission of citizenship to children: 17 where children are born in or outside of the country (mode A01a), and another five in relation only to those children born abroad (mode A01b). The majority of those states that still discriminate are in the Middle East, with others scattered around Africa, Asia, and the Caribbean.
(Note that two countries – Brunei and Liberia – are included in the graphic within the category of countries with restrictions on acquisition of citizenship by children born abroad, but also have discrimination based on sex of the parent; while Liberia amended its citizenship law in 2022 to remove discrimination in acquisition of citizenship by children born abroad – this amendment will be included in v3 of the Dataset, planned for Spring 2024).
Figure 1: Citizenship by descent
A comparison of the GLOBALCIT dataset with UNHCR’s annual report on gender equality and statelessness (published since 2018 for international women’s day in March), illustrates the challenges in coding these provisions: it is rarely as simple as saying that the law discriminates or it does not; there are always grades of discrimination, not only applying to place of birth, but also to the imposition of administrative procedures or interpretation of complicated or contradictory provisions in the applicable laws. UNHCR records an additional three states as discriminating on the basis of sex, compared to the GLOBALCIT dataset. (See this Working Paper by Van der Baaren and Vink for a more extensive discussion of the GLOBALCIT comparative methodology.)
For example, in the case of Barbados, the constitutional provisions are very confusing, with one sub-article (5(1)) establishing discrimination based on sex of the parent in transmission to the second generation of children born abroad, and the next sub-article appearing to remove that discrimination (article 5(2)). UNHCR interprets this as gender discrimination, while the GLOBALCIT dataset has coded it as not including discrimination. There are also conflicts of law to take into account. UNHCR codes Burundi and Togo as retaining discrimination, since the nationality codes continue to discriminate based on sex in transmission of citizenship to children; GLOBALCIT follows the constitutions, which are legally superior, but does not fully capture the complexity of the law – which in Togo is additionally complicated by the existence of a child code that contradicts the nationality code. Both are valid coding choices, but we see that even in this apparently simple assessment there are questions of judgment. Such ambiguities always allow space for discriminatory application of the law in practice, even if those with the means to challenge a decision may get it overturned.
These discriminatory provisions usually prevent transmission of citizenship to a child born in wedlock to a citizen mother, or out of wedlock to a citizen father – but even quite similar provisions can vary quite widely in their effect because procedures to prove descent in case of a child born out of wedlock vary greatly. There are also eight countries that do not, on the face of it, discriminate based on sex in transmission to children – and are not recorded as such by UNHCR – and yet the nationality codes provide for distinctions based on birth in or out of wedlock, meaning that there may be many more challenges in practice if parents do not have a registered marriage. In case of birth out of wedlock, some sort of procedure will in any event always be necessary to establish the connection to a father, usually established in a family or civil registration law.
Figure 2: citizenship based on birth in the country
Discrimination in transmission of citizenship to children can also affect the provisions known as double ius soli (mode A02b, ‘birth in the country (two generations)’ in the GLOBALCIT dataset), where a child born in the territory is attributed citizenship at birth if one parent is also born there. As visualised in Figure 2, this provision is present in 27 countries globally (especially in countries of French colonial heritage); it is often an important protection against statelessness if a parent’s citizenship is not documented. But in two states (Tunisia & Yemen) attribution is restricted to children whose father was also born in the country; while in Togo the nationality code and the child code do not agree.
Discrimination between rights of spouses to acquire citizenship from each other (mode A08) is far more common, as reflected in Figure 3, with 46 states globally making it more difficult for men to acquire the citizenship of their wives than for women to do so from their husbands. Here again, we know that procedures may make it much more difficult for the husband of a citizen to acquire citizenship by marriage, even where legal provisions are similar. And a number of countries have ‘equalised’ rights based on marriage only by removing facilitated acquisition altogether, and requiring spouses to go through the same naturalisation process applied to any other non-citizen. There are 20 states where there is no provision for easier access to citizenship based on marriage.
Figure 3: Acquisition of citizenship based on marriage
Discrimination based on race, ethnic group, religion, or similar characteristic
Discrimination based on race, ethnicity or religion is even rarer in substantive law provisions than discrimination based on sex. Globally, the GLOBALCIT dataset reveals only four countries limiting all transmission of citizenship to children by descent (mode A01) based on such grounds: Brunei, Liberia, Sierra Leone, and Uganda. All four countries also apply the same restriction to a ius soli provision for attribution of citizenship based on birth in the territory (mode A02a, except for Sierra Leone, where the restriction applies to a double ius soli provision (mode A02b)).
But this top-level number may be misleading – and once again illustrates the challenges both of coding and interpreting the superficially clear yes/no answers. These four states are those where the law absolutely restricts attribution of citizenship at birth to those whose parents are members of a certain group. It omits some countries notorious for such discrimination in their citizenship laws, but where non-discriminatory descent provisions exist on paper – including Myanmar or the Democratic Republic of Congo, both of them riven by conflict over the question of identity. In both these countries – and a number of others, including Eswatini, Nigeria, Somalia, and South Sudan – the primary provisions of citizenship law are founded in ethnicity, even if there is not a complete legal impossibility of transmission outside of the ethnic group. This is not easily captured in a coding scheme. In addition to Sierra Leone, there are two other countries where a double ius soli provision (mode A02b) is restricted on the basis of such grounds (Mali and Morocco). Madagascar is the only country that legislatively provides for this form of discrimination to be applied even to abandoned babies, who only benefit from a provision for protection of foundlings (mode A03a) if it can be presumed based on appearance and context that at least one parent is of Malagasy origin.
The four countries highlighted in the GLOBALCIT dataset as restricting citizenship based on group membership are those where naturalised citizens cannot transmit citizenship to their children, unless they are members of the specified group. But naturalisation is rare in most countries of the global south (including all countries in Africa). In addition to high fees and administrative obstacles, stringently applied ‘assimilation’ or ‘contribution to the country’ requirements – common to many countries, but very varied in practice – may mean that naturalisation is inaccessible for all but a very small number. Thus, even if naturalised citizens can in theory transmit citizenship to their children without discrimination, the limited number of naturalisations means that citizenship is restricted to members of certain groups in practice. In some countries, the children of naturalised citizens may struggle to be recognised as citizens themselves even where there are no legal restrictions – as in Nigeria; or the category of citizenship acquired at birth by the children of naturalised parents still reflects that status – as in Rwanda. The cumulation of discrimination based on sex and ethnicity and restrictions on transmission to those born outside of the country – all three present for Brunei – is also hard to highlight through a coding system (but may be attempted in version 3 of the dataset).
There are other laws where race, ethnicity, or religion gives a person preferential access to citizenship by naturalisation, even though it does not impact citizenship attributed at birth. In some contexts, such provisions are unproblematic or positive (for example, providing for recovery of citizenship for the descendants of those who were deprived in the past), but there are others where these preferential provisions are the only ones operational in practice. The GLOBALCIT dataset establishes that 51 countries have ‘cultural affinity’ provisions (mode A19), where naturalisation is easier for members of a particular group – though to understand what is involved more clearly, there is the need to look at the details of each law. These distinctions are especially relevant in those contexts where residence-based acquisition is highly restrictive or not available at all under generalised conditions (mode A06).
Discrimination based on disability
The GLOBALCIT dataset does not explicitly code for discrimination based on disability, and yet a number of countries establish conditions for naturalisation based on ‘good physical and mental health’ that could exclude a disabled person from acquiring citizenship. These provisions are currently subsumed within Mode A06f under naturalisation, on requirements for a certain level of income or the absence of welfare dependency – and more than one hundred states have such conditions. Perhaps a future version of the dataset may also make this more transparent.
Is the glass half full or half empty when it comes to discrimination in citizenship laws?
On the one hand, the drafters and adopters of the 1930 Convention of The Hague on Certain Questions relating to the Conflict of Nationality Laws would have been astonished at the idea that women should have nearly reached equal rights in nationality matters in so many countries of the world. They would have been even more surprised at the steady disappearance of the idea that legal regulation of citizenship could (or even should) be tied to ethnicity, race, and religion – established only a few years earlier as the expected norm in the treaties ending the First World War and establishing the League of Nations.
On the other, it seems surprising from the perspective of a century later that discrimination on either set of grounds is still permitted at all. Although substantial progress has been made, and the principled debate over discrimination based on sex is effectively over, discrimination based on race, ethnicity or religion in grant of nationality is still tolerated (at least to some extent) by the international human rights regime. Yet, as the GLOBALCIT dataset shows, both forms of discrimination are gradually disappearing in law – even if discrimination in the administration of the law remains a pervasive reality in practice.
This is the first post in a series of blog posts on The Global State of Citizenship, accompanying the launch of an updated version of the GLOBALCIT Citizenship Law Dataset. The v2 version of the Dataset will include data on all modes of acquisition and loss of citizenship in 191 countries, covering the years 2020-2022; as well as longitudinal data on dual citizenship acceptance worldwide from1960-2022. The updated Dataset will be launched on Tuesday 16 May at https://globalcit.eu.