Contents Abstract 1. Introduction 2. Nationality as Identity 3. Gender-Based Disabilities and Rights 4. Adversarial Claims: Ethnicity, Culture, Religion, Gender 5. Conclusion - Seeking a Gender-Relevant Solution: Is It Possible?   Bibliography   Download

Gender and National Inclusion

Dr Andrew Grossman
New York and District of Columbia Bars
andygr@excite.com

Abstract

The liberal State has accepted the principle of gender-neutral attribution of nationality, even if by multiplying instances of plural nationality that puts at risk the State's exclusive claim to its members' allegiance. Courts and legislatures have taken corrective action to overcome a heritage of centuries of gender-based exclusion. Nationality, as concept and as right, retains however the baggage of history, of culture and, in places, of faith. Liberal concepts cannot be forced upon unwilling others, whether other States or other individuals who consider themselves bound by religious or customary precepts. Yet, as nationality has acquired significance as source of economic rights, not just political obligation, and as it becomes more firmly a blatant criterion for exclusion (or, within blocs such NAFTA and the EEA, for admission) its remaining gender- (and racially-) discriminatory aspects should be of concomitantly greater concern. Furthermore, how far the State should and must go in redressing past gender discrimination and its effects upon offspring denied a particular nationality at birth remains an open question.

Keywords: Discrimination, Nationality, Citizenship, Gender, Exclusion, Inclusion, Allegiance

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This is a Refereed article published on 21 June 2001.

Citation : Grossman A, 'Gender and National Inclusion', 2001 (1) Law, Social Justice and Global Development (LGD). <http://elj.warwick.ac.uk/global/issue/2001-1/grossman.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_1/grossman/>

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1. Introduction

'Nationality', as source of rights and obligations and basis for assignment of personal law, is in history of law terms a relatively recent phenomenon, dependent in fact upon the effectiveness of State sovereignty (Laski, 1925, Gierke, 1938, pp 3, 5, 35-39, 70, 76, 86-87, Weiss, 1907, vol. 1, pp 2, 79). It is a Euro-centric notion aligned to the Code civil: Islamic had known no such concept (Saba, 1931), nor had East Asian societies[1]. Meanwhile European States would scarcely consider the anomalies inherent in and the illogic of application of nationality codes to Empire[ 2]. Before the mid-Twentieth Century indigenous peoples might have had the status of protégé, but they were not citizens or nationals: in the United States, Native Americans, members of quasi-sovereign entities, were not citizens until 1924. Britain incorporated the nationality concept in its law progressively and somewhat reluctantly, in 1914, 1948 and 1981. An alternative concept of patrial status carrying right of abode, and the application of that concept by immigration law, undertook the task of making aliens of former members of Empire. An individual's affiliations with the British Empire, and then Commonwealth and State and with a specific British legal jurisdiction was measured by 'allegiance' and domicile. Under the common law allegiance was a matter of 'birth in the ligeance of the King'[3] and could not otherwise be acquired, nor could it be renounced. Statutory derogation from this rule by statute created two classes of citizen, for the person naturalised in a colony or a Commonwealth country would thereby acquire no rights in mainland Britain[4] (Keith, 1938).

Everywhere, women's inclusion within the concept of nationality was an afterthought. Women had no independent rights: marriage was 'a condition voluntarily entered into, with notice of the consequences'[5], one of which might be the loss their nationality. They had no political identity or voice and no independent status to pass on to children born in marriage. So complete was she assimilated in the eyes of the law to the status of her husband that the native-born wife might be deemed an enemy alien.[6]. Yet independence of nationality would imply also independence of legal domicile and of habitual residence, invitations to fuzziness and uncertainty in matters of family law and succession. When in the post-war period the economic aspects of nationality came to dominate the political, nationality as source of rights to dominate nationality as source of obligations, gender equality in matters of nationality became more urgent. Yet it also complicated legal relations within the family: gender rights have brought ambiguity and potential for conflict.

To the extent that women have achieved independent rights in matters of status there has been a re-thinking of plural nationality, once thought logical impossibility and political and diplomatic anathema (Weiss, 1907, p 11[7]). Inevitably this has brought its own conflict, for a State of origin may claim the loyalties of its ressortissants and may seek their support in promoting its interests, possibly adverse to those of the State of residence[8]. Old rules of private international law have become less certain even as fairness to wives and children has finally come to be seen as a worthy goal. Furthermore, the roots from within religion and custom of notions of status - and thus of relations defined in family law - may bring grief where cultural hegemony is cited as ground to resist equality, and sanctity of holy matrimony ground to discriminate against the non-marital child (O'Donnell, 1996 ).

2. Nationality as Identity

Nationality was not always a principal source of attributing legal norms to the individual: the Statutists, while arguing over what was 'real' and what was 'personal', acknowledged domicile as criterion for their attribution[9]. For State-builders in Nineteenth Century continental Europe, however, it served a unifying and politicising function. A nation was more than the sum of the individuals who comprised it, said Mazzini. It had purpose: commonality of language, territory, ethnicity, culture, history (Menghini, 1908, vol. 3, p 181)[10] , Mancini (1851, 1874), Esperson (1868), Fiore (1868, vol. 1, pp 97-131), Weiss (1907, vol. 1, pp 1-14)[11], Laurent (1878, vol. 1, ch. 3), Brocher (1882, vol. 1, pp 157-75, §§ 52-57)[12] and others adapted this political theory to jurisprudence: nationality would determine personal status, capacity and family relationships. 'Allegiance', nationality's British proxy, had a feudal basis and under the common law domicile continued there to be the connecting factor for personal law. Nationality was irrelevant to Islam (Elgeddawy, 1971, p 46, Bendeddouche, 1976, p 126)[13] but it was adopted by the Ottoman Empire[14] which, like the British Crown until 1870[15] and the Emperors of China[16], imposed perpetual allegiance upon its subjects.

Like the Church in Rome, Islam, revealed religion, asserts universality and indefeasibility and, like the Church, Islamic (or at least Arab Islamic) authorities have had to consider nationality's relationship to theology. There are within Islamic political thought threads of an ethnic solidarity that would reject or at least attenuate the nationality concept and its effects. This is illustrated by its transposition into law article 7 of the provisional constitution of 5 March 1958 of the United Arab Republic (Cotran, 1959, p 382):

This clause reflects, however, an admixture of modern political ideas with those of Islam, and it has an echo elsewhere:

The loyalty of their present and former citizens may reflect, however, less the international-law aspect of nationality than the religious concept of membership in Dar-ul Islam . Saudi Arabia seems to have founded its claim to an 'Islamic' citizenship upon its constitutionalisation of Sharia law. Still, in common with governments generally that country did not hesitate to adopt nationality in the post-Ottoman era to control entry, residence and economic activity. If there is unease in religious and philosophic quarters over the adoption of such a concept, it is scarcely reflected in enforceable rights available to individuals. Where ethnic and religious tradition do make themselves felt and where they defy modern human rights norms is in the overt gender discrimination practised in relation to the transmission of nationality.

This illustrates that Islam transcends, overarches religion and nationality: it operates upon and controls status, and it is for that reason that it merits particular attention here. The Muslim woman may not, in Muslim law, marry a non-Muslim; if nevertheless she does so her status in a Muslim country may be anomalous[18]. Such anomalies are not new: Morocco was a sovereign State independent of the Ottoman Empire and its civil and religious law overlapped. Article 15 of the Convention of Madrid of 3 July 1880[19] recognised the principle of perpetual allegiance insofar as it obliged the Moroccan subject who was naturalised abroad without consent of the Moroccan government and who subsequently returned to Morocco to submit to Moroccan laws after a period equal to that of his sojourn abroad or else to depart from the territory.

Further, the relationship between the Muslim State and its non-Muslim nationals comes to be tested with regard to personal law. Muslim States and certain secular, mixed or non-Muslim States, among them Israel, Lebanon, India, Cyprus and Senegal, maintained religious-based (legal pluralist) systems of personal law (Hooker, 1975, Sow Didibé, 1991). There, attribution of a particular status would denote specific rights and obligations in parallel with those of nationality. Legal pluralism might thus give rise to a 'sub-nationality' with differentiated rights and obligations. It might also, under appropriate circumstances, engender conflict with modern Western notions of non-discrimination and gender equality: in mixed marriages, whose status shall control within the relationship? Can individuals freely change religion and can they choose the religious upbringing of their offspring?

Meanwhile, the disintegration of the Arab Nation remains a source of resentment among certain conservative Muslim theologians who seek a revival of the Khilafa[20]. Contemporary views of allegiance reflect admixtures of religious concepts with secular aspects of the State in a collision of pretensions of universality. It is because Jehovah's Witnesses were felt by some, especially in time of war, to provoke the State in this manner, denying the validity of the concept of sovereignty, that they were exposed to reprisal by civil authorities[21]. If today the Apostolic letter Quod aliquantum of Pius VI of 10 March 1791 attacking as 'monstrous principles' the freedom to 'think, write and publish whatever one wants' in the matter of religion (Theiner, 1857, p 37, Blet, 1990, p 75, cf. Olivier-Martin (1948, §139)[22] has scarcely any longer validity in Europe[23], neither do States tolerate incitement to execute a punitive fatwa there[24]. It is out of this conflict that there arises the current challenge of perpetual allegiance (and apostasy)[25]. The occasional incitement to violence in developed, pluralist countries by committed confessional groups and the exportation of sectarian struggles to an audience of expatriates who may possess the nationality of the target nation constitute an essential aspect of this problem. Allegiance then ceases to have its traditional relationship to nationality and citizenship; to the degree that there is civic participation it is with an aim of promoting the interests of a foreign body politic or a foreign-based social group. It is, then, a conflict in the context of modern freedoms of ancient and current notions of nationality and allegiance.

Within a single State, too, there may be conflicts of allegiance:

These may give rise to vested rights potentially adverse to those of the sovereign power. As a further complication their conflicts and disabilities may be related to an absence of international recognition, notwithstanding the possession by a territory of an operative internal juridical order. This class of territory has included (at various times) Taiwan, the Turkish Republic of Northern Cyprus, Rhodesia, Transnistria, Republika Srpska, Republic of Somaliland (Hargeisa), Biafra, Katanga, Manchukuo and others.

3. Gender-Based Disabilities and Rights

Not only social group and recognition of sovereignty but also gender has gravely compromised the access of many to nationality rights. That the arbitrary attribution to a married woman of her husband's status might, indeed would, cause hardship did not attract remedial attention in many quarters until the 1970s: the dismissive attitude of the 1915 US Supreme Court was widely shared. Indeed, the laws of some European States denied a married woman almost until the present day the right to transmit nationality to her offspring born in marriage[27]. Article 5(1) of the European Convention on Nationality of 1997[28] prohibits discrimination in nationality matters, including that on the basis of gender:

The juridical status of women and their equality in terms of rights and obligations, inclusive of those relating to family relationships, are addressed in other international instruments as well: article 5 of Protocol No 7 of the European Convention on Human Rights and Fundamental Freedoms[29], the International Covenant on Civil and Political Rights[30], article 17(4) of the Pact of San José[31] and the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[32]. The European Court of Justice, in Sabbatini v European Parliament[33], recognised equality of gender as a general principle of European law. Discrimination brought about by a provision of nationality law of a member State was addressed in a staff case, Airola v Commission[34], where a female employee of the Community contested the refusal to afford her a post allowance because of the involuntary attribution to her of Italian nationality at her marriage. It follows that in principle one should be able to benefit from, but not be disadvantaged vis-à-vis the State by, involuntary acquisition of a nationality after majority.

The concept of nationality is inherently exclusionist and discriminatory (post-war blocs such as Benelux, the Nordic countries, NAFTA, the EEA and the EU having used nationality as basis for reciprocal grant of rights), and it is thus difficult to frame a set of criteria for its attribution against which can be judged consistency with some universal norms of human rights. This is so even though in the present century such norms have evolved with respect to divestiture of nationality, most clearly in relation to race and gender. Thus, while one can posit that the offspring of two nationals of a single territory, upon birth in that territory, ought ipso facto to possess the nationality of the parents[35], the child born within the same country of an alien father, and the child born abroad of two parents both possessing the nationality of the same foreign country, may in some instances be denied that or any other nationality. There is currently a debate in Egypt over the attribution under the Egyptian nationality law to children born in Egypt to Egyptian mothers, and of the status of their alien fathers[36]. There are only 'soft law' norms (Weil, 1983) relating to such issues, norms voluntarily assumed by States relating to the rights of women and children, and in particular in implementation of the United Nations Convention on the Reduction of Statelessness[37]. With respect to the facilitation of naturalisation of stateless persons, they are addressed by to article 32 of the United Nations Convention Relating to the Status of Stateless Persons[38]. Marital status of the parents and facts of recognition of paternity (in some cases maternity) may control the attribution of nationality to a non-marital child wherever born[39].

The pre-eminence of the principle of unity of the family and the pre-emption of the wife's by the husband's nationality were presumed in many countries until at least the 1960s, and remain so today in many Muslim and other African and Asian countries. This is a politico-legal concept: it does not equate to a right of family reunification across borders. That right lapsed with the refutation of the assumption that the wife of a national should take ipso facto the nationality of the husband or at least that she should (and would) have access to naturalisation or registration on preferential terms. The latter may still be possible, but it is generally dependent upon prior admission with right of residence. By way of example of the prior rule, although the pre-World War I Argentine nationality code said nothing about such attribution of nationality to women, court decisions relying upon doctrine, international practice and the attribution by the Civil Code to a wife of her husband's status[40] held that:

The Argentine Ministry of Foreign Affairs, in a circular message to its diplomatic and consular posts of 9 February 1918, instructed that passports should be issued to a foreign woman married to an Argentine citizen 'who has her domicile in the Republic'[42].

The most dramatic change in the doctrine and the law of nationality has been in the crystallisation of the right of a female to acquire a specific nationality at birth and later to pass that nationality onto her children. Gender subordination that was taken for granted before the last quarter of the Twentieth Century has become legally insupportable. As principles of gender equality first validated in the economic sphere have come to apply to relations of family and society, individual relationships between members of mixed family groups and States competing for their allegiance has become a matter of party autonomy. The right to establish independent legal domicile; access of women to equal educational and employment opportunity, pay and benefits; and independent immigration-law rights are related one to another. Indeed, they follow logically upon the emancipation of women, collectively from the rejection of the concept of legal 'unity of the family' under male dominance. Their importance has increased concomitantly with the establishment of barriers to entry and residence by non-nationals and, in the special case of the European Union, by non-citizens of that Union. The issues have mainly been addressed in the political process. Still, such judicial decisions as have been reported and which have considered the inherited precedent for inequality have done much to highlight the problem of static laws and assumptions in an environment of changing social reality. Some have sought to correct the continuing discrimination that arises from status and from presumptions inherent in pre-modern legal drafting. Even courts that have abstained from action have done so with implied acknowledgement of the obsolescence of existing law[43].

The obvious first question concerns the right of a woman to claim a given nationality in particular circumstances. Discrimination has diminished in the liberal State but it exists still, if more subtly arranged. The traditional argument asserted that a woman was presumed to have made a knowing choice in marrying a foreigner[44]. Whether a foreign nation in fact attributed its nationality to the foreign-born offspring of male citizens, and whether a woman in fact gained the nationality of her husband under the laws of his country were of no concern to the court[45]. Indeed, the assumptions of the law and administrative regulations were such that it has been in law and in fact easier for women than for men to gain entry permits to join their spouses or fiancé(e)s[46]: in the United Kingdom the abolition of the 'primary purpose' test[47] may have diminished discrimination against migrant spouses from developing countries but it has done nothing to reduce the hardship for many British women seeking entry of foreign spouses: they must still prove that they alone and without any contribution from the spouse can provide 'adequate' accommodation and support for the family[48]. A similar requirement was enacted into law in the United States in 1996[49]. Hostility to dual nationality born of now-obsolete views of sovereignty (Donner, 1994, p 212)[50] and the private international law complications of multiple nationalities within a family have been two factors serving to perpetuate discrimination. The matter has been further complicated by the dependence of nationality assignment upon marriage and illegitimacy, questions of status that themselves are undergoing rapid transformation.

That there may be a right to a nationality free of the discretionary power of administrative authorities has been for the first time asserted in modern conventions and declarations on nationality[51], human rights[52] and the rights of the child[53] when addressing the question of statelessness. Such a right is, however, not self-executing, and it may not afford any claim to a particular nationality. The European Convention on Human Rights, while assuring integrity of the family in its article 8(1) does so in terms of residence and has nothing to say of nationality. The realisation of any right to nationality in individual cases depends upon the effectiveness of internal public and constitutional law.

In numerous countries the political and judicial processes have reduced the frequency of negative conflicts (statelessness) at the risk of increased incidence of positive conflicts (plural nationality). This marks a trend rather than a consensus. Rational and fair access to nationality depends to the same degree as other rights upon provision of means of enforcement, and the subordination of State prejudices to individual rights. Empowerment of women, which is to say their legal autonomy, to the extent that it has been achieved has come only gradually and inconsistently. Anomalies and conflicts remain widespread, no less in matters of nationality than elsewhere. The relationship between the social and legal status of women and the laws of nationality and domicile is clear enough. The inability of English women burdened with the unwanted legal domicile of an absconded husband to divorce became increasingly untenable when women were increasingly employed outside the home and when divorce came to be seen as a right. In the United Kingdom the Domicile and Matrimonial Proceedings Act 1973[54] was an inevitable result. Subsequently, Australia[55] and New Zealand[56] likewise modified their laws of domicile of married women, and Canada[57] altered its laws on jurisdiction for divorce actions. In the United States dependent domicile has been rejected on Constitutional grounds[58], dismissing the prior general presumption that a husband had the right to fix the domicile of himself and his wife, the wife's domicile merging in that of her husband, so long as the power was exercised in a reasonable and equitable manner and with honest intent[59]. The French judiciary assured access to divorce to any person domiciled in France (Loussouarn & Bourel, 1996, §§ 518-526)[60]. Progressive disappearance of laws disallowing divorce has diminished the problem and the likelihood of characterisation of a change of nationality in facilitation of divorce as fraude à la loi is increasingly remote[61].

The cultural aspect, and legislators' assumptions regarding the universality of their own basic premises, yield both positive and negative conflicts. Presumption of commonality or mutuality of criteria, coupled with unconcern over individual rights in the context of sovereign autonomy, led to anomaly and hardship. Thus, a law of 2 March 1907[62] might effectively provide that 'any American woman who marries a foreigner' should be deprived of American nationality, but it could scarcely assure what it went on to state, that she should 'take the nationality of her husband'. Yet, to the US Supreme Court in 1915, marriage to a foreigner was 'as voluntary and distinctive as expatriation and its consequence must be considered as elected'[63], the reality of the imposed foreign nationality being of no greater moment than that of Frau Levita-Mühlstein[64], deprived in 1946 of Swiss nationality by reason of her marriage to an expatriated German despite her continuous residence in Switzerland. Still, there was evolution in the principle and at least beginning in 1933 the State Department deemed residence abroad to be a necessary prerequisite for such expatriation[65].

It took a revolution in perspective to achieve the criteria of equality established in CEDAW's article 9[66]:

Still, discrimination remains because nationality laws are commonly prospective only and usually do not redress past injustice. The Canadian Supreme Court, in Benner v Canada[67], noted this in deciding whether the non-retroactivity of the Canadian Charter of Rights and Freedoms posed an impediment to its application in the case, and whether the nature of nationality as a status or ongoing condition meant that Benner, born abroad of a Canadian mother and alien father, suffered continuing discrimination. In striking down offending provisions of the 1985 Citizenship Act[68] as:

and hence violative of the Charter, the Supreme Court highlighted the continuing nature of the discrimination. This reasoning is similar to that in the 1981 Lovelace[69] decision of the United Nations Human Rights Commission. Of course, individuals may plan their lives around their status, and attribution of a different nationality in adulthood may be infelicitous. Thus the Swiss National Assembly in two successive amendments to the federal nationality law[70] has made it progressively easier for the children and minor grandchildren of Swiss women, including women who were deprived of their nationality by reason of marriage to foreigners (Immer, 1964), to be integrated into Swiss nationality (Beguin, 1998), without, however, imposing that nationality unsolicited. The Japanese nationality law of 1984, incorporating into law the principle of gender equality, followed litigation regarding Japanese-born offspring of Japanese mothers married to American fathers[71]. Implementing newly-recognised constitutional and treaty obligations, the law provided for persons born of Japanese mothers between 1 January 1965 and the entry into force of the new law to register as Japanese nationals with the Ministry of Justice[72]. The courts had held that the judiciary was unable itself to reform the nationality law, but acknowledgement of the legislature's failure to adapt to new norms was implicit in the decisions.

The relationship between norms of gender equality and the nationality law of a particular jurisdiction can only mirror local economic and political facts. In particular, nationality laws that base themselves on religious doctrine, and particularly on Islamic (patrilineal and gender-discriminatory) and Jewish (matrilineal[73]) rules of attribution, may never achieve consistency with Western secular norms of human and civil rights. In the post-war Western reversal in the treatment of women in nationality matters, judicial innovation, while important in defining the issues and in adumbrating principles, has been secondary to legislation. The surveys of the treatment of married women under European nationality laws conducted under Bernard Dutoit (Dutoit, 1973, 1990). describe the progressive revisions made in black-letter law across Europe up to 1990. In the United States, the Congress equalised the status of foreign-born offspring of American fathers and mothers by an act of 24 May 1934[74]. In 1989 a US District Court applied the rule retroactively, holding that a statute:

Much earlier, article 2 of the Irish Constitution of 1922 had specifically discounted gender as a relevant criterion for nationality.

Internal constitutional regulation of nationality is an unremarkable expression of political autonomy. Of greater interest here is the external limitation on such internal acts, or at least on the recognition of such acts by other jurisdictions, including international organisations, mixed tribunals and supra-national entities. In particular, while the European Union is at the forefront of constitutionalisation of the rights of women, its abstention from any control over member States' attribution of their nationality - and, derivatively, European Union citizenship - means that insofar as de jure or de facto inequality exists in the nationality law of the member States it is imported into the European Union constitutional order. Furthermore, inequality is reinforced by the fact that the invocation of Community establishment rights may tend in fact to depend on the career of the principal wage-earner, typically the husband[76]. To date, the European Court of Justice has gone only so far as to say that it might ignore an involuntary post-employment acquisition of nationality for purposes of staff benefits[77]. It has raised no obstacle to the imposition of that nationality nor to its recognition for other purposes. Indeed a member State would normally consider that its own nationality, however acquired, pre-empts that of another country, whether or not an EU member State[78]. This is not invariably the case, and the United Kingdom Government pragmatically ignores the status as British of Irish-British dual nationals when so doing will afford them greater immigration-law sponsorship rights[79]. The European Union interest would seem to be limited to assuring that recognition is given to the status of EU citizen for purposes of Community rights[80].

Circumstances in which the child of an EU citizen does not share the parent's nationality are easily envisaged[81]. Even if transmission of nationality is in principle gender-neutral, the requirement in the nationality laws of certain countries of a qualifying place of birth[82] or residence[83] for such transmission illustrates the problem. Restrictions in some countries upon retention of plural nationalities is a further cause. To the degree that access to professions is hindered by alienage (within the European Union ordinarily only in the case where neither spouse is an EU citizen), there is innate disadvantage. Possession of the nationality of the State of residence, however acquired, may have other effects in areas outside European Union competence, not least with respect to direct taxation[84].

There exists a continuing and broad movement towards spousal autonomy in matters of nationality, and of tolerance of dual nationality, that has marked both developed countries and those non-Muslim developing countries which are major exporters of labour. To some degree this is a recognition of the fact that transnational couples may elect residence in the country of more favourable economic opportunity rather than as a matter of course in that of the husband even if it is in fact commonly the husband's career that governs. It also recognises the basic right of a woman to retain her status independently of her husband, and that offspring may be educated and may eventually develop centres of interests as adults in the country of either. The change was both economic and political, and depended upon legislation for its legal effects. Yet, in two respects the courts have had important impact. First, nationality laws are normally by their terms prospective only, although (as in the Swiss case) they may include a right of facilitated naturalisation for persons disadvantaged by prior law. Second, not all countries have had the political will to adopt the new principles. It may sometimes suit governments to allow the judiciary to make difficult decisions and to order into law human rights principles that are otherwise framed in terms of generalities.

In the United States, after the proposed Equal Rights constitutional amendment failed of ratification it was the Supreme Court that strongly called into question the use of any generalisation of gender roles in the attribution of legal rights[85]. The Court had long held that immigration and nationality law was a matter within the sole purview of Congress(Motomura, 1990, Legomsky, 1984, Koh, 1994)[86]. It progressively enlarged the rights of women but left to lower courts the task of extrapolating these rights and applying them to the immigration and nationality sphere. The Ninth Circuit Court of Appeals held in Wauchope v U.S. Dept. of State[87] that gender discrimination in the matter of the right to transmit citizenship to foreign-born offspring was an impermissible denial of the equal protection component of the Fifth Amendment's due process clause. The law had already been amended, but with prospective effect only[88]. It was necessary to attribute the right of transmission to the American-citizen parent and to find discrimination on account of gender if binding legal precedent was to be differentiated. Courts also had to distinguish clearly between the rights of a national (the right to transmit nationality) and legislative discretion in matters of immigration, rendered nearly absolute by the prior case law. In fact, the decisions reflected an abandonment of patronising and, in view of developments in gender law over the succeeding twenty years inappropriate, assumptions regarding gender roles:

That society and law have moved on is extensively documented in recent decisions of the Supreme Court, notably United States v Virginia[90] rendering unlawful State support of single-sex colleges, and in the arguments put before the Supreme Court in Miller v Albright[91]. The latter case concerned the status of the foreign-born non-marital daughter of a U.S. national where paternity had not been established prior to the offspring's majority. Had the mother, and not the father, been a U.S. national, transmission of nationality would have depended solely upon her having previously resided in the United States for a continuous period of one year[92]. The petitioner, supported by the American Civil Liberties Union, had invited the Court to reject the test of 'facially legitimate' with respect to legislative gender discrimination in matters of immigration, and instead to adopt the 'heightened scrutiny' applied to all 'gender-based classifications today'. She asked the court specifically to reject all gender stereotyping. The justices could not, however, agree on any basis for decision, leaving many of the issues, and particularly that of the constitutionality of such discrimination, unresolved. The case was determined largely by the perception of two concurring justices that the courts lack the power to confer nationality and of two others that the claimant lacked standing to raise a discrimination claim that belonged to her father. It was the gender of the parent, not that of the child, that was relevant, these latter two held. Only two of the justices reached the substantive issue; they explicitly turned aside '[t]he argument that §1409(a)(4) is unconstitutional because it is a stereotypical 'gender-based classification''.

In England the Court of Appeal has rejected the relevance of sex discrimination legislation to nationality[93] and immigration[94] matters. The Canadian Supreme Court, in Benner[95], addressed a factual situation the reciprocal of that in Wauchope: the status of the offspring born in the United States of a Canadian mother and an American father. That court faced an obstacle to the application of a non-discrimination test arising from the lack of retroactive effect on the part of the Canadian Charter of Rights and Freedoms. As was the case with the American law struck down in Wauchope, the law itself had been amended but without retroactive effect. Prior law denied citizenship except by naturalisation to offspring born abroad before 1977 of Canadian mothers, notwithstanding that they would have been citizens if born of Canadian fathers. In its judgment, the Canadian court, like the court in Wauchope , looked at the right of transmission as one vested in the mother. Furthermore, it saw status as a continuing attribute and thus susceptible of infringing the Charter even though the latter, also, had prospective effect only.

The judgement of the Botswana Court of Appeal in the Unity Dow case[96], in finding unlawful gender discrimination looked similarly to the impediment posed by the Botswana nationality law to the exercise by a mother of her own citizenship rights. In that case, the law was of a type that presumed foreign attribution of nationality to the legitimate children of a foreign father whether or not such nationality would in fact apply, or whether the father indeed had any nationality at all. The complainant successfully argued (as Benner was to argue before the Supreme Court of Canada), that Batswana women married to alien men suffered discrimination with respect to Batswana men married to alien women. The court, in a 3-2 decision, accepted that the mere possibility of deportation or exclusion of the children would constitute constructive denial to the mother of her inherent right of residence in her country of nationality. In so doing it had to find that discrimination on the basis of gender was captured by the general anti-discrimination provisions of the country's constitution and that the specific grounds there listed were included only by way of example. The Attorney General's argument that restriction of nationality to offspring of Batswana men was a reasonable reflection of a patrilineal and male-oriented Botswana society was rejected.

In his dissenting opinion in Dow , Judge Puckrin alluded to the 'living tree' theory of constitutional development, expounded by Lord Sankey of the Privy Council in Edwards v Attorney-General for Canada[97] in reversing a Supreme Court of Canada decision that women were not 'persons' under Canadian constitutional provisions regarding eligibility for appointment to the Senate. Unlike the majority he was not, however, willing to go outside the bare words of the constitutional and legislative provisions to review the general post-war constitutional and human rights environment. Finding no ambiguity or doubt, he would not look beyond the statutory provisions to international obligations or declarations, or, for that matter, societal values. That, point of view is, of course, found elsewhere: in the English courts' restraint in referring to Hansard for legislative history[98]; and in some courts' disregard of international rights by characterising the issue as procedural.[99].

External norms can be applied, as in these cases, only with the consent of the State concerned. The importance of reported cases of both domestic and international fora is that reasoned judgements tend to establish new norms that States which purport to adhere to rules of non-discrimination and human rights must meet. In this sense, even though the European Union, for example, does not overtly seek to influence national decision making in nationality matters among its member States, moral suasion and judicial critique of acts relating to status have served as restraints to State autonomy. Furthermore, it has sought to impose an acquis communautaire, a range of discretion in nationality matters, upon prospective member States although not explicitly upon present ones[100]. Certain rights of EU citizenship have been made available to non-citizens indirectly, through their attribution to citizen-sponsors and citizen-employers[101].

4. Adversarial Claims: Ethnicity, Culture, Religion, Gender

As the claim of the State to a monopoly of the citizen's loyalty has diminished other groups and entities have continued to assert theirs (Hirst, 1989, Laski, 1916). The State is not the only entity with claims to assert that may be in opposition to those of the individual. While a handful of nations retain rules of perpetual nationality, few reject the internationally-affirmed right to depart one's country of nationality. More problematic are apostasy laws that would punish nationals for assertion of freedom of belief, and restraints in matters of adoption. Two types of policy are operative here: advancement of a faith recognised in law as the 'better religion', and protection of group interests, usually of an indigenous people. Any such practice holds a potential for gender discrimination and compromise of private rights.

Insofar as recognition and enforcement are sought today for such uncompromising notions in Western legal systems they are bound to come into conflict with public policy. In a predominantly Muslim country such as Egypt and Sudan, the norms of the 'better religion' may be applied in conflicts cases as a matter of judicial interpretation. Aldeeb Abu-Sahlieh explains this:

This is, from the point of view of generally recognised fundamental freedoms, a regression in relation to the case law of the Mixed Tribunals of a prior era:

It goes without saying that it ignores also the conflict with Jewish law, under which religion is only acquired through the mother or by conversion[103]; but here one is concerned with the effects of Islamic public policy. This is illustrated by the Zoghby-Hallaq case[104]. The Hallaq spouses, Greek Catholics married according to the rites of their faith, separated, the daughter remaining with her mother. To avoid his child support obligations the father converted to Islam. The Sharia court awarded him custody of the child, declaring that the child must follow whichever of her parents professed the 'better religion', and that she risked learning from her mother elements of apostasy. The Greek Catholic court pronounced judgement in the opposite sense; the Egyptian Government was left to intervene. Although Law 462/1955 had suppressed Sharia courts, Egyptian civil courts scarcely changed the orientation of Egyptian law in the matter: Islamic norms would pre-empt any others in direct conflict with them, and the court would adopt the Sharia decision.

Such conflicts were not new. The Privy Council in 1897 had ruled in the case of two Punjabis, converted Christians married in Christian form who subsequently reverted to Islam and married again in Muslim form. The second marriage later was repudiated by talak , a repudiation which was claimed in court to have been defective in form[105]. The will of the husband, now deceased, would have excluded his former wife from any share in the succession. The Privy Council determined that it was personal status at the time of death which would regulate the succession. Having found no valid divorce, it declined to rule on the question of possible fraud upon the court in the matter of their conversion.

Recognition of such a conversion, if deemed to be in fraude à la loi, would on the other hand be resisted in certain civil law environments. Austrian and Spanish case law in the era when divorce was denied to their Catholic subjects, would not except from the stricture persons who changed religion[ 106]. Canon law[107], like Islamic law, punishes apostasy and to the degree that the State sees itself as adopting religious law as its own the objections of ordre public and fraude à la loi would seem to merge. Most predominantly Muslim and many African countries, following the patrilineal sense of Islamic and customary law, have ignored the principle of gender equality that has elsewhere become an important factor in the assignment of nationality status[108]. It is excluded in Islam that a Muslim woman should, in the absence of his conversion to Islam, marry a non-Muslim man[109], or a Muslim man any but a Muslim woman or one whose religion possesses a scripture predating the Muslim era, i.e. a Christian, Jew or Zoroastrian[110]. As a result, one cannot expect to find case law of Muslim countries recognising such marriages and their effects. On the other hand Islamic courts, it appears, will not look behind otherwise admissible conversions of convenience intended at validating marriages, any more than they will do so with relation to divorces[111].

In general, one must not try to apply to legal systems of sectarian States the notions of jurisprudence and of public and administrative law that are taken for granted in secular countries. The assumptions, indeed prejudices, brought to particular cases and to statutory construction by judges of other systems may yield inappropriate conclusions. An example of this, one that received considerable doctrinal attention at the time, concerned the administrative treatment of married women under the Ottoman nationality law of 19 January 1869. That law addressed the issue only tangentially, and only in its article 7:

From this, the Minister of Foreign Affairs, Server Pacha, extrapolated in 1872, that:

Objection by European jurists could contribute little to an appreciation of the practical rights available to women within the Ottoman empire.

The tension between group rights and individual rights, where the State has intervened on behalf of group rights of indigenous peoples, is illustrated by the cases interpreting the U.S. Indian Child Welfare Act of 1978[113], preserving tribal prerogative in matters of adoption of certain Native American infants. If one accepts the characterisation of membership in protected, quasi- or sub-sovereign tribes possessing special rights of residence within tribal lands and particular economic rights (chiefly, today, in matters of fisheries, mineral resources and gaming revenues), the statute constitutes both a restraint of personal autonomy and a forced retention within the 'sub-nationality'. The policy resulted from democratic debate; it does, however, remind one of other situations where anthropologists, ethnologists and indigenous leaders might wish to preserve linguistic, cultural and ethnic purity, but where the result is to limit access to education and, perhaps, better quality of life. These are not, it would seem, questions suitably left to lawyers, even within the speciality of human rights law.

5. Seeking a Gender-Relevant Solution: Is It Possible?

If it is for each State - and for that State alone - to determine who are and who shall be its nationals[114] other States are not necessarily bound to recognise that determination for all purposes[115]. Indeed, and notwithstanding the foregoing, States occasionally attribute to an individual a foreign nationality which that person does not enjoy[116]. The Dow, Benner and Wauchope cases have shown that, nevertheless, States may feel themselves bound by gender-related constitutional and human rights constraints. Israel, which in principle follows religion as one criterion for the attribution of nationality as of right, has admitted a secular definition for purposes of the Law of Return[117]: the importance of this in relation to the grant of that civil privilege is underlined by contrast to the gender-discriminatory religious law of divorce (and tender of a get ). In that case it is not the State but the observant Jewish divorced woman who in the context of her community enforces the 'law'[118]. The paradox of human rights law is that it defends the right of the individual to assert and to practise her religion, and thereby to induce and reinforce any discrimination practised against her. Those seeking a 'gendered solution' can and should impede the State from enforcing an unwanted religious norm upon her, but they cannot fairly impede or discourage her from adopting that norm for herself and, in effect, embarking upon her own course of discrimination.

Modern treaties, and now all European countries[119], accept the principle of gender non-discrimination in nationality matters at least prospectively. It is only that faith-based limitations on conduct and status, enforced by the individual and his or her immediate community, are largely outside the scope of law, municipal or international. Political correctness and diplomatic expedience, coupled with a presumption of State autonomy in such matters, may prevent outsiders from intervening in cases of State-sponsored discrimination in nationality matters[120] Indeed (assuming the individual dissents from such rules) international refugee law is still trying to come to terms with how it must or should deal with instances where such non-governmental practice impinges upon fundamental freedoms and constitutional law the matter of applying to refugees an unwanted personal law of the country from which they have fled[121]. It is particularly those countries that claim for the State a religious identity and which impose immutable religious rules dating from ancient times that would deny the pertinence of any gendered, or gender-relevant, solution.

For the rest, the solution to past and present discrimination lies in the judiciary and the legislature. Nationality remains a convenient criterion for exclusion, and if gendered and ethocentric conceptions of nationality are outdated and inappropriate for the liberal State, the incongruity remains that equal nationality both implies and is dependent upon equal citizenship. 'Dominance', 'subordination' and 'property' are commonly used to describe the pre-modern status of women. The chaotic, ungovernable State or territory is unlikely to provide women or children their entitlements, and neither is the State that denies relevance to modern norms. Furthermore, individual rights are in competition with group rights, which may be seen by the group as supporting oppression and outrage. Corruption is a further impediment. The evolution of nationality from mainly political obligation to largely economic right in step with its use as criterion for general exclusion has done little to further women's interests: beyond providing some few having a connection to an economically developed country with a particular property right in the nature of dowry.

On the European plane, two serious anomalies persist. On the one hand, the European Union claims to enforce a regime of gender non-discrimination, and to define and protect the rights of EU citizenship. On the other, it abstains from authority and comment over the nationality laws of its member States, however much they may reflect and project present or past discrimination[122]. The Declaration on Nationality of a Member State annexed to the TEU, provides that:

Meanwhile, the European Convention on Human Rights, while arguing for respect for family and setting some minimal standards for family reunification and settlement, has nothing to say about nationality, principal criterion for right of abode. Lack of objectivity and, in some cases transparency, in nationality matters invites arbitrary exclusion and inevitably works against the interests and claims of minorities and women.

Upon present trends we can say that whereas multilateral agreements and objective normative formulations prescribe non-discriminatory practice, the absence of any transnational enforcement mechanism or any domestic remedy (whether out of democratic deficit or from some pre-emptive religious or cultural norm) allows discrimination and hardship to persist. The woman who asserts her individual rights as against claims of community, tribe or people may[123] or may not[124] prevail. In the absence of commitment to liberal norms by the institutions of the State, an evolution of tradition or a departure from religious norms, no 'gender-relevant solution' may exist for the victim of national exclusion: flight or emigration only acquiesces in and finalises the rejection.

One cannot help viewing the actual state of affairs in the light of the possible, and suggesting that in a Rawlsian world of liberal and decent States, where 'inequality and subjection are overcome, and women are granted equal political participation with men and assured education' (Rawls, 1999 , p 9); gender neutrality of status would contribute to a solution for those social and political pressures that underlie the closure of frontiers and perhaps reverse the intensified role of nationality in exclusion. Rawls, however, postulates reasonableness and pluralism, qualities that are yet today outside the scope, at least of municipal law, in these matters. Rawls allows that decent States might permit cultural and religious-based role assignment, at least if 'it is fully voluntary and does not result from or lead to injustice' (1999, pp 100, 161). The liberal State can do more: it can, contrary to present practice in some countries, provide practical gender equality and administrative transparency in matters of family unification.[125] It can, comporting indeed with the current legislative trend, allow plural nationality, assuring that rights to nationality and to its appurtenant political and economic options will not be extinguished by reason of gender or passage of time. It can assure access to such rights for at least one generation of offspring without regard to marital status of parents or gender of the citizen parent. In a world of strict frontier controls where nationality rights have come to constitute a form of property, this is the least we can expect. A total gendered solution would imply more: to include a broad dismantling of migration controls in their present form; it would diminish discrimination by diminishing the relevance of nationality.

Endnotes

1. The United States treaties with China and its Chinese Exclusion Act of 1882 presumed a 'Chinese nationality' yet this nationality would have to be externally defined: a nationality law was not enacted until 1909. It, like succeeding laws of 1912 and 1929, would borrow from Western civil law ideas including the predominance of jus sanguinis, patriarchal supremacy and unity of family nationality (Chang Chu Kuing 1941).

2. Similarly for the United States following the Treaty of Paris, 10 Dec. 1898, 1898 T.S. 343 & T.S. 343½, 30 Stat. 1754; Barber v Gonzales, 347 U.S. 637 (1954) (Philippines); Gonzales v Williams, 192 U.S. 1 (1904) (Philippines); see also the Insular Cases relating to the inapplicability of certain constitutional rights to outlying territories: Balzac v Puerto Rico, 258 U.S. 298 (1922) (Puerto Rico); Ocampo v United States, 234 U.S. 91 (1914) (Philippines); Dorr v United States, 195 U.S. 138 (1904) (Philippines); Downes v Bidwell, 182 U.S. 244 (1901) (Puerto Rico); Hawaii v Mankichi, 190 U.S. 197 (1903) (Hawaii)

3. Eyre v Shaftsbury (1722) 2 P. Wms. 103, 123, 24 Eng. Rep. 659, 666:

4. Markwald v Attorney-General [1920] 1 Ch. 348, 1 Ann. Dig. 203 (naturalisation in Australia); Gelez, Cass. crim. 14 Feb. 1890, 17 Clunet 116 (1890) (French emigrant naturalized in Australia).

5. Mackenzie v Hare 239 U.S. 299, 312 (1915). Mrs Mackenzie's husband was British, and under the British Nationality Act 1914, c 17, s 10 she would in fact have become British upon her marriage: 'the wife of a British subject shall be deemed to be a British subject, and the wife of an alien shall be deemed to be an alien ... .' The underlying statute was amended by the Cable Act, 42 Stat. 1021, 22 Sept. 1922 to allow for the restoration of U.S. nationality to expatriated women. See also Rocha v Immigration and Naturalisation Service, 450 F.2d 946 (1st Cir. 1971) (holding that such reintegration was automatic).

6. Techt v Hughes 229 N.Y. 222, 128 N.E. 185 (1920) (Cardozo, J. Eligibility to inherit was the only issue at bar). In a 1901 case, a French woman married to a Belgian obtained Belgian nationality and lost her French nationality; but the Seine Tribunal recognised the perversity of imposing on her the obligation of declaration of residence otherwise imposed on all foreigners seeking to exercise a profession in France (Raviguet, épouse Delbecq , Seine, 15 Apr. 1901, S., 1902.II.53). Still, the French woman who married a foreigner would, under article 19 of the Civil Code even as it stood prior to the law of 26 June 1889, lose her nationality without regard to whether or not she obtained her husband's: (Gruffy, 1893, see also Cluzel, 1901). The 1889 law reflected acceptance of the arguments of Counsellor Camille Sée before the Senate on 13 November 1886:

Journal Officiel, Sénat in extenso, 1886, p 1183. Sée argued that family unity was essential to make sense out of international conventions relating to nationality, that its absence was bound to give rise to conflicts in ordinary affairs. This notion was to be reflected in the legislation of many countries and international agreements through the 1970s.

7. 'Nul ne peut avoir deux nationalités. La nationalité, plus jalouse que ne le serait une société civile ou commerciale, n'admet pas de partage; elle réclame du citoyen toute son activité, tout son dévouement; elle absorbe sa personnalité tout entière.'

8. Speech of President Mohammad Khatami to Iranian-Americans at the United Nations, 20 Sept. 1998, reported by Associated Press, 20 Sept. at 16.25 EDT.

9. Guy Coquille, Questions et réponses sur les articles des coutumes, Quest. cxxxi, cited by Lainé (1888, vol. I, p 104):

10. But cf. 1 Niboyet, Traité, 2d ed.,§ 85-87 at 92-96: 'La base de la nationalité doit être politique, et non ethnique'.

11. Quoting approvingly at p 3 Serge Popoff, Du mot et de l'idée de la nation (1869), 'Ce qui constitue la nation est ... l'unité de civilisation, ou mieux, l'unité de culture, ce dernier mot ayant un sens plus étendu.'

12. Commenting particularly on the problem of non-reciprocity and Civil Code art. 11.

13. Abd-el-Hakim, 12 Rev. internat. dr. internat. publique 550 (1905); 32 Clunet 1035 (1905), Sirey 1908 pt. II, p. 121, note de Boek; discussed by Saba (1931, pp 81-82) and Gardet (1976) (definition of umma as framework for the community in spiritual and social terms).

14. Reasserted in the Ottoman nationality code of 13 January 1869, art. 5. Young (1905, vol. 2, p 227); Arminjon (1903b, p 162); see Azar v du Marest, Gaz. Trib. III, No 3; Zogheb v Zogheb, Gaz. Trib., XV, No. 37; Nicola v Louka (1883) 1 C.L.R. 6, and discussion (Goadby 1926, pp 39-42); cf. Marrasch v Marrasch, Aix, 9 Jul. 1903, Dalloz 1905, pt. II, p 73. Perpetual allegiance was at no time a part of the French idea of nationality (Cogoran 1879, p 9).

15. Naturalization Act, 33 & 34 Vict. ch. 14.

16. Staunton's Pen. Code China, 272, 255, quoted in United States v Wong Kim Ark, 169 U.S. 649 (1898), at note 2.

17. Jordanian Law 7 of 1963, amending the Jordanian Nationality Law.

18. Salem (1888, p 480). Consider the case of Bahraini princess Meriam al-Khalifa, Tony Perry, 'Bahraini Who Wed Marine Can Stay in America', LA Times, 25 May 2001.

19. 71 State Papers 639, ratified by Belgium, Denmark, France, Great Britain, Morocco, Spain, Sweden, United States. Benaïm v Proc. Rép. Bordeaux, Cass. civ. (Ass. plén.), 20 Nov. 1992, D.S., 1992.265; Epoux Zabulon v Procureur commissaire du gouvernement de Casablanca , C.A. Rabat (1st Ch.), 9 Feb. 1937, Rev. crit., 33.1938.224, note Ménard.

20. Khalifa (caliph), 'one who replaces someone else who left or died', in Islamic theology referring more specifically to the successors to the prophet Muhammad's position as the political, military, and administrative leader of Muslims. Khilafa is a related Arabic word which, in the context of Islam, denotes the government of the Muslim nation, of which the Khalifa is the head.

21. Watch Tower Bible and Tract Society v Mount Roskill Borough, [1959] N.Z.L.R. 1236 (S.Ct.) (annulment of a municipal decision refusing access to public halls); accord Roncarelli v Duplessis, [1959] S.C.R. 121. And see Hoffmann v Austria, ECHR, Case No 12875/87, A255-C.

22. Cf. also Canons 2314-2318 (Codex Juris Canonici 1917).

23. Bowman v Secular Society Ltd., [1917] A.C. 406 (blasphemy); Whitehouse v Gay News Ltd., [1979] A.C. 617 (not blasphemy to attack a non-Christian religion); accord, R. v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury, [1991] 1 Q.B. 429.

24. But cf. the growth of the India-based Deobanti sect (20% of Britain's 1.5 million Muslims) 'given to issuing fatwas ... regulating tiny details of behaviour', Julian West & Jo Knowsley, 'British Muslims Ordered to Adopt Taliban teachings', Sunday Telegraph (London), 27 July 1997, at 13.

25. Civil Code of Iran (Engl. transl. M.A.R. Taleghany, 1995), § 976(2), provides that a person is Iranian if his father is Iranian without, seemingly, any limit to the number of generations through which nationality may be transmitted.

26. Jay Treaty, T.S. 105, 8 Stat. 116 (1794), still in force, granting reciprocal rights of residence, employment and economic activity within the United States and Canada to Native Americans and First Canadians.

27. Mackenzie v Hare, 239 U.S. 299, 312 (1915), supra, note 5.

28. Strasbourg, 6 Nov. 1997, ETS No 166.

29. Strasbourg, 22 Nov. 1984, ETS No 117. Ratified by 15 countries, including, among European Union countries, Austria, Denmark, Finland, France, Greece, Italy, Luxembourg and Sweden.

30. 16 Dec. 1966, entered into force 23 Mar. 1976, 999 UNTS 270, No 14668 (1976).

31. American Convention on Human Rights, San José, 22 Nov. 1969, 1144 UNTS 143, No 17955 (1979).

32. New York, 18 Dec. 1979, 1249 UNTS 454, No 20378 (1981); Rehof (1993).

33. [1972] E.C.R. 345.

34. [1975] E.C.R. 221.

35. Yet, one can further hypothesise the situation where one of the parents, also possessing a second nationality, is accredited as a diplomat to the State of residence. There is no uniformity of policy or law in the accreditation of diplomats having a claim to the nationality of the receiving State, nor in the attribution of nationality to offspring where one of such parents possesses the nationality of that State. Cf. Optional Protocol to the Convention on Diplomatic Relations, Concerning Acquisition of Nationality, Vienna, 18 Apr. 1961, 500 UNTS 223, No. 7311 (1964) and Optional protocol to the Convention on Consular Relations concerning acquisition of nationality, Vienna, 24 Apr. 1963, 597 UNTS 469, No. 8639 (1967); Digest of U.S. Practice in International Law (1976), pp 199-200.

36. Neil MacFarquhar, 'Egyptian Mothers Fight for Foreign Offspring's Rights', NY Times, 14 May 2001.

37. New York, 1961, 989 UNTS 175, No 14458 (1975).

38. New York, 1954, 360 UNTS 117, No 5158 (1960), p 154.

39. 8 U.S.C. § 1409 (1996) ('Children born out of wedlock'). But see Miller v Albright, 523 U.S. 420 (1998) and United States v Ahumada-Aguilar , 189 F.3d 1121 (9th Cir. 1999).

40. (Argentine) Civil Code, § 90(9), Law 32, tit. 2, part. 3.

41. Romero del Prado (1930, pp 320-27 & 345-46, n. 23), citing Gonzalez Videla v Torrecillas de Ghisolfi, Sup. Ct. Argentina, 7 Feb. 1891, Case No 32.

42. French translation in Bourbousson (1931), pp 253-54.

43. Miller v Albright, 523 U.S. 420523 U.S. 420 (1998); and see cases cited in note 77 below.

44. Mackenzie v Hare, 239 U.S. 299 (1915); Botswana Government submission in Dow v Attorney General, [1991] L.R.C. (Const.) 574, aff'd [1992] L.R.C. (Const.) 623.

45. Id., and Yee v Director of Public Schools, 7 S.C.R. 832 (Phil. 1963) (disqualification as teacher following marriage to Chinese man); Commonwealth Act No 63, § 7 (1936), rule abrogated by 1973 Constitution, Art. 3, Sect. 2 (1987 Constitution, Art. 4, sect. 4).

46. Abdulaziz, Cabales and Balkandali v U.K. , ECHR, Case No 15/1983/71/107-109, A-94.

47. R. v Home Secretary, ex parte Iqbal, [1993] Imm. A.R. 270; abolition of the 'pernicious rule' was announced by Home Secretary Jack Straw in a press release dated 5 June 1997.

48. Immigration Rules, HC395; R. v Immigration Appeal Tribunal, ex parte Begum [1993] Imm. A.R. 1.

49. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 30 Sept. 1996, 110 Stat. 3009-641, 8 U.S.C. § 1182(a)(10).

50. The trend towards toleration of dual nationality, typically extending access to nationality to offspring of expatriates and in particular to those of expatriate women, is illustrated by the new Swedish Lag om Medgorskap, 2000/01:82 and Mexican Ley de nacionalidad, D.O. 23.01.98.

51. Supra, notes 28-32.

52. CSCE Helsinki Document 1992, 'The Challenges of Change', para. 55-57.

53. United Nations Convention on the Rights of the Child, 20 Nov. 1989, GA Res. 44/25.

54. 1973 c. 45.

55. Domicile Act 1982 (Cth); Domicile Act 1979 (N.S.W.); Domicile Act 1978 (Vic.); Domicile Act 1981 (Qld); Domicile Act 1980 (S.A.); Domicile Act 1981 (W.A.); Domicile Act 1980 (Tas.); Domicile Act 1979 (N.T.).

56. Domicile Act 1976.

57. Divorce Act, Chapter D3.4, R.S., 1985, c. 3 (2nd Supp.).

58. Samuel v Univ. of Pittsburgh, 538 F.2d 991 (3d Cir. 1976).

59. Tate v Tate, 149 W.Va. 591, 595, 142 S.E.2d 751, 754 (1965).

60. Law No 75-617 of 11 July 1975; Civ. Code Art. 310.

61. Roch v Glyn, Cass. (Belgium, 1st Ch.), 29 Sept. 1994, Pas., 1994.778, Rev. trim. dr. fam., 1994.517; Princesse de Bauffremont v Prince de Bauffremont, Cass. (Ch. civ.) 18 Mar. 1878, S., 1878.I.193, obs. Labbé; accord Vidal v Vidal, Trib. civ. Seine, 31 Jan. 1877, C.A. Paris, 30 June 1877, S., 1879.II.206, D.P., 1878.II.6; Gunzburg v Schrey , Trib. civ. Seine, 14 May 1962, 90 Clunet 110 (1963), aff'd, C.A. Paris, 18 June 1964, 91 Clunet 810 (1964), note Bredin (Mexican divorce of domiciliaries of New York State of differing nationalities); Mountbatten v Mountbatten, [1959] P. 43 (New York residence; husband held to have retained English domicile and Mexican divorce denied recognition even though it would be valid in New York); and see Verplaetse (1938, pp 8-49). For an example of expedient acquisition of Russian nationality for purposes of divorce and quick remarriage, see Duchêne (1995, pp 54-56). For effects of a putative marriage upon innocent parties, D'Argentré v de Bosmelet , C.A. Rouen, (Ch. réun.), 6 Apr. 1887, D., 1889.II.17.65. 66. Given effect in Mackenzie v Hare, 239 U.S. 299 (1915).

62. 34 Stat. 1228, chap. 2534, Comp. Stat. 1913, 3960.

63. Given effect in Mackenzie v Hare, 239 U.S. 299 (1915).

64. Levita-Mühlstein v Dépt. féd. de justice et police, Trib. féd., 14 June 1946, A.T.F., 72-I, 1946 at 407.

65. Hackworth, Digest, vol. 3 at 242-50 (1942); Savorgnan v United States, 338 U.S. 491 (1950).

66. Supra, note 32.

67. Benner v Canada (Secretary of State), [1997] 1 S.C.R. 358.

68. Citizenship Act, R.S.C., 1985, c. C-29.

69. Lovelace v Canada, UN Human Rights Commission, 30 July 1981, A/36/40, p 166 (enrolled First Canadian deprived of her status upon marriage to a non-Indian, notwithstanding subsequent divorce).

70. Amended Swiss nationality law, art. 58a, Facilitated naturalization of children of Swiss women by birth, adoption or naturalization, 20 June 1997, RO 1997, p 2369.

71. Including Esther Hanako Shapiro, Tokyo Dist. Court, 30 Mar. 1981, Case 1977 (gyo u) No 360 (dismissal of demand for declaration of nationality), aff'd, Tokyo High Court, 23 June 1982, case (gyo ko) No 27; appeal to Supreme Court withdrawn upon announcement of amending legislation.

72. Art. 2, ch. 2 of Law No 45 of 25 May 1984, entered into force 1 Jan. 1985; see Wang (1992).

73. With arcane laws of legitimacy; for the law of mamzerim , see Novak (1996).

74. 48 Stat. 797, now 8 U.S.C. § 1401(h) (1996).

75. Elias v U.S. Dept. of State, 721 F. Supp. 243 (N.D. Cal. 1989).

76. That a third country national husband may derive employment rights from his EU-national spouse in part-time or low-paid employment does not change this analysis, Levin v Staatssecretaris van Justitie, [1982] E.C.R. 1035.

77. Airola v Commission , [1975] E.C.R. 221, supra note 34; cf. van den Broeck v Commission, [1975] E.C.R. 235 (opposite result where spouse failed to take steps to retain her prior French nationality).

78. Oppenheimer v Cattermole, [1976] A.C. 249 (H.L.).

79. Rejecting the rule of R. v Immigration Appeal Tribunal ex parte Aradi, [1987] Imm. A.R. 359 (Q.B.D.).

80. Micheletti v Delegación del Gobierno en Catabria, [1992] E.C.R. I-4239.

81. See Office National de l'Emploi v Deak, [1985] E.C.R. 1873.

82. British Nationality Act 1981, c 61, s 2(1)(a) ('otherwise than by descent').

83. Immigration and Nationality Act, 8 U.S.C. § 1401(c),(d)&(g) (1996).

84. Oppenheimer v Cattermole, [1976] A.C. 249 (H.L.).

85. Weinberger v Weisenfeld, 420 U.S. 636, 645 (1975).

86. Fiallo v Bell, 430 U.S. 787 (1977) (denial of preferential immigration status to foreign-born non-marital child of American father).

87. Wauchope v U.S. Dept. of State, 985 F.2d 1407 (9th Cir 1993).

88. Act of 24 May 1934, ch. 344, 1, 48 Stat. 797.

89. (Footnotes and citations omitted) Fiallo v Bell, 430 U.S. 787430 U.S. 787, 799 (1977).

90. United States v Virginia, 518 U.S. 515 (1997), holding that Virginia Military Institute's single-sex admission policy violated the Fourteenth Amendment's Equal Protection Clause.

91. Miller v Albright, 523 U.S. 420 (1988), aff'g, Miller v Christopher, 96 F.3d 1467, 321 U.S.App. D.C. 19 (D.C. Cir. 1996). The Mauritius Supreme Court found the 'fundamental rights and freedoms of an individual' including 'the unity of the family as a group' pre-empted contrary interpretation of Constitutional provisions on the nationality of an out-of-wedlock child in Panjanadum v Prime Minister, 19 Jul. 1995, 1994 Mauritius Rep. 93. Miller, by contrast, was an adult when she sought attribution of U.S. nationality.

92. 8 U.S.C. § 1409(c) (1996).

93. Kassam v Immigration Appeal Tribunal, [1980] 2 All E.R. 330.

94. Bernstein v Immigration Appeal Tribunal, [1988] Imm. A.R. 449 (C.A.).

95. Benner v Canada, [1997] 1 S.C.R. 358.

96. Dow v Attorney General, [1992] L.R.C. (Const.) 623 (C.A., Botswana).

97. Edwards v Attorney-General for Canada, [1930] A.C. 124 (P.C. Canada).

98. Pepper v Hart , [1993] A.C. 593; Pickstone v Freemans Plc., [1989] A.C. 66; cf. Steele Ford & Newton v CPS, [1994] A.C. 22.

99. Breard v Pruett, 134 F.3d 615 (Cir. 1998), aff'd sub nom. Breard v Greene, 523 U.S. 371 (1998) (death penalty case); Paraguay v U.S., ICJ, order of 9 Apr. 1998 (same case; right of consular access).

100. Reportedly the impetus behind the 1998 revision of the Estonian nationality law, Riigi Teataja I 1998, 111, 1827 . See also British Nationality Act 1981, c 61, s. 7(a)(3)-(4).

101 Rush Portuguesa Lda. v Office National d'Immigration [1990] E.C.R. I-1417; Vander Elst v Office des Migrations Internationales [1994] E.C.R. I-3803.

102. Tewfik v Elias, Trib. mixte d'Egypte, C.A. (3d Ch.) 18 Dec. 1923, Gaz. trib. mixtes, vol. XIV at 171 (Succession of a Coptic Christian converted to Islam in order to marry a second wife; after having repudiated her he reconverted to Christianity).

103. The question of conversion under Jewish law, where only halachic conversion according to strict Orthodox tradition will be universally recognised, arose in Miller v Ministry of the Interior, H.C. 230/86, P.D. 40(4) 436, 9 Jewish L. Ann. 265 (1991) (conversion by Reform rabbi; the court rejected the proposition from the Ministry to include the notation 'convert' in the margin of the identity certificate). See note 122 and accompanying text on the definition of 'who is a Jew' for purposes of the Law of Return.

104. Damanhou r, Egypt, 21 Oct. 1956, S. Hanafi, Recueil de jurisprudence de statut personnel, Moassassit-al-Matbouat al-Haditha, Alexandria, undated (in Arabic), vol. 2, at 88, discussed in Abu-Salieh (1979, pp 256-57, n. 29). Similarly, Farida Fouad Nakhla v Sameer Ameer, [1957] S.L.J.R. 21 (C.A. Khartoum).

105. Skinner v Skinner, (1898) I.L.R. 25 Cal. 537 (P.C., India).

106. Perroud (1922, p 10); Trib. synodal, Barcelona, 24 Jan. 1906, 34 Clunet 190 (1907); Sup. Ct., Austria, 30 Nov. 1880, 13 Clunet 472 (1886); 18 Oct. 1884, 13 Clunet 472 (1886); 20 Oct. 1896, 15 Clunet 385 (1898); 8 Nov. 1904, 34 Clunet 463 (1907); 11 Jan. 1905, 34 Clunet 462 (1907). Opposite result under later law: Sup. Ct., Vienna, 6 Feb. 1934, 3 Ob. 60/34, Jur. Bl. 1934, at 301, 62 Clunet 188 (1934) (Austrian domiciled abroad).

107. Canon 1364 (Codex 1983).

108. E.g. , Art. 6 of the Algerian Nationality Code: 'Est de nationalité algérienne par la filiation: 1º l'enfant né d'un père algérien; 2º l'enfant né d'une mère algérienne et d'un père inconnu; 3º l'enfant né d'une mère algérienne et d'un père apatride.'

109. Supra, note 18.

110. See Circular of 5 Nov. 1973 of Tunisian Ministry of Justice prohibiting solemnization of marriages between female Tunisian Muslims and non-Muslims, Université catholique de Louvain, Documentation at 311; Sura 2.21 ('And do not marry the idolatresses until they believe'); Taushihul Masa'el, § 2406 (Shia compilation; 'A Muslim woman cannot marry a non-Muslim, and a male Muslim cannot marry a non-Muslim woman who is not Ahlul Kitab [ahl al-kitab, person of scripture]').

111. Unpublished Egyptian case, 27 Feb. 1934, cited in Elgeddawy (1971, p 165); cf. Barak v Muslim Religious Court, (1987) 41(ii) P.D. 745, 23 Isr. L. Rev. 525 (1989); Philippine Civil Code, Art, 93 (public officials may not inquire into the bona fides of religious profession of applicants for marriage solemnization).

112. Cited in Arminjon (1901, p 529). See Freige v Freige, Cass. civ., 2 Aug. 1893, 20 Clunet 1181 (1893).

113. 8 Nov. 1978, 92 Stat. 3071, 25 U.S.C. § 1911 (1996); Mississippi Choctaw Indians v Holyfield, 490 U.S. 30 (1989); In the Matter of the Guardianship of Q.G.M., a minor, 808 P.2d 684 (Okl. 1991).

114. Tunis and Morocco Nationality Decrees, PCIJ, Ser. B, No 4 (1923); Convention on Certain Questions Relating to the Conflict of Nationality Laws, 12 Apr. 1930, L.N. Doc. C. 24 m. 13, 1931, 179 LNTS 89, No 4137 (1937).

115. Liechtenstein v Guatemala(Nottebohm), (2d phase), ICJ, p 4. (1955).

116. Mahaboob Bibi v Home Secretary [1987] Imm. A.R. 340; Levita-Mühlstein v Dépt. féd. de justice et police, Trib. féd., 14 June 1946, A.T.F., 72-I, 1946; Maury, Trib. Seine, 20 Jan. 1967, 41 I.L.R. 379, (1967) 94 Clunet 893, note Aymond, 41 I.L.R. 378 (refusal by French court to give effect to Vietnamese judgment on French nationality).

117. Rufeisen v Minister of the Interior, (1962) 16 P.D. 2428, 1962-69 Sel. J. Spec. Vol. 1 (denial of status under Law of Return to converted Jew, member of Carmelite order).

118. Thus, Klagsbrun v Va'ad Harabonim of Greater Monsey, 53 F. Supp. 2d 732 (D. N.J. 1999); Becher v Becher, 245 A.D.2d 408, 667 N.Y.S.2d 50 (1997) ('agunah' problem, denial of 'get').

119. The last European jurisdiction to amend its nationality law to accord with Council of Europe Resolution (77)13 on the Nationality of Children born in Wedlock (promoting gender equality in transmission of nationality) was San Marino: Legge sulla cittadinenza, 16 June 1999, No 66, Bollettino Ufficiale della Repubblica di San Marino, 30 June 1999, No 6, p 190.

120. European Council on Refugees and Exiles, Research Paper on Non-State Agents of Persecution (2000).

121. Martini v Creyssac, Cass. civ. (1st Ch.), 25 June 1974, D., 1975.II.189; Martini v Martini, C.A. Paris, 10 June 1972, D., 1973.II.296, conclusions Advocate General Cabannes. Similarly, Casperus v Casperus, Israeli Sup. Ct. sitting as Ct. App., 28 Oct. 1954, 21 I.L.R. 181 (nationality of testator, German refugee in Palestine).

122. The argument that the European Union should interfere in State decision making over the formulation and application of its nationality law must be based on ground of discrimination: that actually or potentially it compromises rights assured by the Treaties, and specifically by Art. 6 TEU (renumbered Art. 12): 'Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.' In advancing such an argument, one must overcome the implication of abstention in the determination of nationality in article 8, TEU ('Every person holding the nationality of a Member State shall be a citizen of the Union'), made more explicit by the post-Amsterdam addition in the renumbered article 17: 'Citizenship of the Union shall complement and not replace national citizenship.' This is perhaps limited further by article F3: 'The Union shall respect the national identities of its Member States.'

123. Supra, note 96.

124. Otieno v Ougo, (1982-88) 1 K.A.R. 1049 (C.A. Nairobi 1987) (widow of decedent held pre-empted by tribal authority with respect to funeral and burial arrangements).

125. On the other hand, Rawls's 'fundamentalists' of either gender might deny the validity of any gender-relevant solution (1999, pp 126-27).

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