Recommendation 1654 (2004)1
Nationality rights and
equal opportunities
1.
Traditionally, each state determines under its own law who are its
nationals, although many states have accepted to be bound by international
instruments relating to citizenship, multiple nationality and statelessness.
2.
In matters of nationality, account must be taken both of the legitimate
interests of states and those of individuals. One of the most important
legitimate interests of individuals is not to be discriminated against – in
particular, on the grounds of gender. However, while this principle has,
today, been recognised by most states in theory, in practice discrimination
has occurred in the past and may still occur in some cases.
3.
Unfortunately, no in-depth comparative study of legislation on nationality
focusing on equal opportunities between women and men in Council of Europe
member and Observer states has so far been undertaken. The Parliamentary
Assembly thus has to base its evaluation of the situation on a survey
conducted by its Committee on Equal Opportunities for Women and Men, to
which replies from thirty-two member and three Observer states were
received.
4.
The Assembly congratulates those countries which have removed discrimination
based on gender from their legislation. In particular, it welcomes the
elimination of discrimination against women in several Council of Europe
member states (where citizenship used to be passed down the male line, or
women lost their citizenship upon marriage to a foreigner), as well as the
elimination of discrimination against men (who were not always allowed to
pass down their nationality to illegitimate children, especially those born
abroad). Nearly all of the laws in question have full retroactive effect,
which is of paramount importance in the area of nationality rights.
5.
Some work remains to be carried out, however. Men continue to face obstacles
in passing down their nationality to children born out of wedlock to a
foreign mother in Denmark, Iceland, Malta and Switzerland. Some
discrimination against women also subsists in Switzerland and Turkey, which
are about to revise their legislation to eliminate this. Some provisions
applied to the dependants of Vatican citizens could be revised to ensure
equal treatment of men and women.
6.
The Assembly also points out that the situation in the thirteen member and
two Observer states which it was not able to study might give rise to
legitimate concern. Some countries’ provisions on naturalisation
requirements may also lead to unintentional discrimination against foreign
women as regards, for example, income, social integration or knowledge of
language, although some countries have taken measures to counterbalance this
effect.
7.
The Assembly thus recommends that the Committee of Ministers:
i.
conduct an in-depth comparative study of the legislation on nationality in
all Council of Europe member and Observer states focusing on equal
opportunities between women and men, which would uncover any distinctions
being made on grounds of gender (be they intentional or unintentional, or
due to the lack of retroactivity of legislation intended to eliminate
discrimination), would highlight best practices and would make concrete
proposals to remedy any shortcomings;
ii. call on the governments and parliaments of member and Observer states
to eliminate any possibility of discrimination on the grounds of gender in
their legislation on nationality, if they have not done so already, and to
ensure that such legislation is doted with full retroactive effect and is
applied in a gender-neutral manner.
1.
Text adopted by the Standing Committee, on behalf of the
Assembly, on 2 March 2004 (see
Doc.10070,
report of the Committee on Equal Opportunities for Women and Men, rapporteur:
Ms Aguiar).
