Gender discrimination against women’s right to transfer Bahraini citizenship to children – a freedom that is reserved for male citizens
Constitutional provisions on gender equality and laws guaranteeing equal rights to confer citizenship are crucial for ensuring women’s legal equality, but gaps remain in many countries. According to the UN Women Report of 2022 on the Progress on the Sustainable Development Goals, it may take up to 286 years to secure such overarching legal frameworks worldwide.
Nevertheless, the right to a nationality is a fundamental human right enshrined in Article 15 of the 1948 Universal Declaration of Human Rights: “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. It is also directly related to the rights of children, with Article 7 of the Convention on the Rights of the Child (CRC), and Article 24 of the International Covenant on Civil and Political Rights (ICCPR) ensuring that “every child has the right to acquire a nationality”.
However, with increased attention to women’s rights and the objectives of gender equality, gender-based discrimination within nationality legislation has become a matter of concern in many countries worldwide. Although since the adoption in 1979 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), most countries have changed their legislation and practices to ensure gender equality, in 2022, 25 countries would still not have attained this equality in the granting of nationality. Of these, 12 are located in the Middle East and North Africa (MENA), including Bahrain, categorized in orange according to the 2022 Annual Background Note on Gender Equality, Nationality Laws, and Statelessness.
Bahrain’s nationality law, the Nationality Act of 1963, only allows Bahraini mothers to confer their nationality to their children born in the country or abroad if the fathers are unknown or have no documents to establish filiation. In other words, if a child is born to a foreign father and a mother with Bahraini citizenship, she cannot pass on Bahraini nationality. In contrast, men can pass citizenship to their children automatically. Therefore, such discrimination against women, enshrined in law, contributes, along with other inequalities, to the Global Gender Gap Index of 63% in Bahrain, according to UN Women.
Consequently, while states retain the right to shape the content of their nationality laws, according to the 1961 Convention on the Reduction of Statelessness, “they must do so in accordance with international standards on nationality, including the principle that statelessness should be avoided,” as well as with respect for gender equality and women’s rights. The following legal analysis thus aims to demonstrate that Bahrain has not established the necessary safeguards within its citizenship law to be per international human rights standards.
Bahraini national legal framework
Firstly, from a gender equality perspective, Article 18 of Bahrain’s Constitution of 2002 ensures that “people are equal in human dignity, and citizens are equal before the law in public rights and duties; there shall be no discrimination among them on the basis of sex, origin, language, religion, or creed.” Bahrain has also promoted gender equality in its national and international commitments to the 2030 Agenda and the Sustainable Development Goals.
Secondly, the Bahraini Citizenship Act of 1963, including its amendments, regulates the acquisition, loss, and restoration of Bahrain citizenship. It defines five primary modes of acquisition of Bahraini citizenship: by virtue of former law, i.e., the 1937 citizenship law, by descent, by birth, by naturalization, and by marriage. For the purposes of this analysis, the acquisition of nationality by descent codified in Article 4 is of particular interest. It stipulates that:
“Anyone shall be regarded a Bahraini national if:
(A) Was born in Bahrain after the effective date of this Act, and his father was a Bahraini at the time of birth.
(B) Born outside Bahrain after the effective date of this Act, and his father was a Bahraini national at the time of birth, provided that this father or the grandfather was born in Bahrain.
(C) Born in Bahrain or abroad, after the effective date of this Act, and his mother, at the time of birth, was a Bahraini national provided that father was unknown, without nationality or fatherhood was not substantiated.”
This Article aims to give men the right to grant citizenship to their children automatically. In other words, Bahraini women cannot transfer their own citizenship to either of their children, except in cases specified in paragraph (C), if the child is born from an unknown father or from a father whose legal status has not been proven. Instead, the law elaborates in Article 7, Paragraph (1) on the possibility of a female citizen losing her Bahraini citizenship through marriage if she acquires the citizenship of her foreign husband.
Therefore, women do not have the same rights as men to pass citizenship to their children.
In 2018, Bahrain stated in its Fourth periodic report submitted by Bahrain under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women that an amendment to the Nationality Act was under discussion, aiming to grant Bahraini citizenship to children of Bahraini women married to foreigners “in line with constitutional principles, safeguarding the state’s sovereignty.”
Later, in 2019 the Kingdom of Bahrain, in its National Report Regarding the Progress of Implementing the Beijing Declaration and Platform for Action 2020, reaffirmed that measures had been taken, including “a draft law amendment, to promote equality and non-discrimination against Bahraini women.” The proposed change, dating back to the decision of the Council of Ministers on 11 January 2014, which approved a draft law amending some provisions of the Bahraini Nationality Act of 1963, would allow children of Bahraini women married to foreigners to be eligible for Bahraini citizenship based on specific criteria.
According to what has been stated in both national reports, measures still protect those children in the meantime of assimilating the legal status of foreign children of Bahraini women to that of children of Bahraini men. For instance, Act No. 35 of 2009 would ensure the fair treatment of children of Bahraini women married to non-Bahrainis on par with Bahrainis regarding education, health, and residence fees. Moreover, the Supreme Council for Women, along with representatives from the Council of Ministers, the Royal Court, and the Ministry of the Interior, would monitor citizenship applications for these children. However, with regard to the law, Bahraini women married to foreigners still need to request a transfer of nationality for their children through a royal decree, for which the Supreme Council for Women is entitled to provide legal assistance and support until children can obtain Bahraini citizenship. Considered as “regulatory measures,” the Kingdom of Bahrain justifies it by ensuring that children do not possess multiple nationalities and by respecting the will of individuals.
Thirdly, Bahrain has acceded to several international human rights standards, some with specific reservations but not all of the 18 international human rights treaties. The following table provides an overview of the treaties used in the legal analysis to which Bahrain is legally bound through its accession.
| Human Rights Instrument | Ratification Status | Reservations |
|
International Covenant on Civil and Political Rights (ICCPR) |
State Party |
Article 3, 18, and 23 as not affecting in any way the prescriptions of the Islamic Shariah Article 9, (5) as not detracting from its right to lay out the basis and rules of obtaining the compensation mentioned in this Paragraph
Article 14, (7) as no obligation arises from it further those set out in Article 10 of the Criminal Law of Bahrain, which provides: ‘Legal Proceedings cannot be instated against a person who has been acquitted by Foreign Courts from offenses of which he is accused or a final judgment has been delivered against him, and the said person fulfilled the punishment or the punishment has been abolished by prescription.’ |
| Optional Protocol to the International Covenant on Civil and Political Rights | No Action |
/ |
|
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) |
State Party |
Article 2 to ensure that its implementation is within the bound of the provisions of the Islamic Shariah
Article 9 (2), Article 15 (4), Article 16, and Article 29 (1), in so far will be implemented “without breaching the provisions of the Islamic Shariah” |
| Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women |
No Action |
/ |
| Convention on the Rights of the Child (CRC) | State Party | / |
Legal analysis
Throughout this legal analysis, the focus has been on the various international instruments governing women’s rights concerning the right to nationality. Although these rights are interrelated with the rights of children to acquire a nationality and the rights relating to statelessness, their corresponding legal instruments will not be specifically analyzed, as their interpretation lies in light of other human rights standards. This applies to the Convention on the Rights of the Child (CRC), Article 15 of the 1948 Universal Declaration of Human Rights, Article 24 of the International Covenant on Civil and Political Rights (ICCPR), and the two main treaties designed to regulate statelessness, namely the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
Legal analysis with regard to the general principles of Human Rights
The 1948 Universal Declaration of Human Rights (UDHR) enshrined women’s rights in international human rights law, recognizing that “All human beings are born free and equal in dignity and rights” and that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Although the Bahraini Constitution, and more specifically Article 18, is legally in line with the principles of equality set out in the UDHR, the fact that the Bahraini Citizenship Act of 1963 and its Article 4(C) provides that citizenship can be granted to children of Bahraini women only under certain conditions, and not automatically like men, demonstrates that Bahraini law does discriminate against women based on their gender. This law is, therefore, contrary to the principles set out in the Universal Declaration of Human Rights (UDHR).
Legal analysis with regard to the ICCPR
Looking further afield, on 16 December 1966, the International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations General Assembly, along with its Optional Protocol. It encourages states to respect the civil and political rights of everyone. It establishes an international legislative framework for the right to life, freedom of religion, speech, assembly, electoral rights, and rights to due process, and a fair trial. It also promotes gender equality, with Article 3 enjoining States Parties to “ ensure the equal right of men and women to the enjoyment of all civil and political rights.” The treaty also has a monitoring body, called the Human Rights Committee, aiming to ensure the full enjoyment of all civil and political rights, reviewing state reports on national implementation of the Covenant and issuing concluding observations.
As explained above, women do not have the same rights as men in Bahrain to pass citizenship to their children according to Article 4 of the Bahraini Citizenship Act of 1963. Since the law governing nationality is part of civil and political rights, its enjoyment must, according to Article 3 of the ICCPR, be equal between men and women. However, since Bahrain has established a reservation on Article 3 of the ICCPR, specifying that its implementation must “in any way affect the prescriptions of the Islamic Shariah,” it is difficult to condemn Bahrain for its non-compliance with Article 3. In this regard, the 2018 Concluding observations of the Human Rights Committee on the initial report of Bahrain, in its recommendations 7 and 8, expressed concerns about the lack of information on the possibility of withdrawing them and on its vagueness allowing Bahrain a broad interpretation. The Human Rights Committee is also concerned about the incompatibility of these reservations with the purpose of Article 2 of the ICCPR.
- The State party should consider reformulating or withdrawing its reservations to articles 3, 9 (5), 14 (7), 18, and 23 to ensure the full and effective application of the Covenant
Thus, notably through this reservation, Bahrain has not implemented gender equality concerning the enjoyment of civil and political rights, for the right to nationality. This lack of implementation was also reaffirmed in recommendations 19 and 20 of the 2018 Concluding Observations of the Human Rights Committee on the initial report of Bahrain. They highlight the discriminatory aspect of the law governing the right to nationality in Bahrain. Although the Human Rights Committee is aware of the intention to amend the law, it is concerned about the length of the procedure, which has lasted for several years without any improvement in terms of gender equality with regard to the transfer of nationality to children.
- The State party should repeal all discriminatory provisions against women in its legislation. In particular, it should (a) expedite adoption of the amendments to the Nationality Act to ensure that women and men have equal rights in transmitting their nationality to their children; and (b) ensure that women are granted equal rights to divorce, including economic rights.
Consequently, these recommendations reflect the failure of the Bahraini Citizenship Act of 1963 to comply with its obligation to grant equal civil and political rights without consideration of gender, governed by the ICCPR and its Article 3.
Legal analysis with regard to the CEDAW
Following a feminist movement initiated in 1970, a key treaty in gender equality was adopted in 1979. This is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Together with its Optional Protocol, these texts are referred to as the International Bill of Rights for Women. A monitoring body of the Convention was also established, called the Committee on the Elimination of Discrimination against Women (CEDAW Committee).
Under the CEDAW, States condemn discrimination against women in all its forms and agree to end discrimination against women. Discrimination against women is defined in Article 1 as “any distinction, exclusion or restriction made on the basis of sex, which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
The themes of participation and equal rights in decision-making run throughout CEDAW, which refers to the involvement of women, on an equal basis with men, in decision-making related to marriage and family life. In this respect, the CEDAW Committee has stressed the importance of the right to a nationality, which it defines as “critical to full participation in society,” in its General Recommendation No. 21 on Equality in Marriage and Family Relations. Therefore the Convention contains an essential safeguard against the statelessness of women, but also against a significant cause of the statelessness of children as it provides in Article 9 that States parties “shall grant women equal rights with men with respect to the nationality of their children.”
As the Bahraini nationality law indicates, men and women do not have the same rights regarding the transmission of nationality to their children. The Bahraini Citizenship Act of 1963 is therefore not in conformity with Article 9 of CEDAW, nor its Article 1, since the basis of this distinction between the rights granted to men and those given to women is discriminatory on a gender basis. However, Bahrain has made a reservation to Article 9, in that its application must be “without breaching the provisions of the Islamic Shariah.”
Despite this reservation, the CEDAW Committee reinforced its concerns about the incompatibility of the Citizenship Law in Bahrain with the rights proclaimed in CEDAW in its Concluding observations of 2 March 2023 on the 4th periodic report of Bahrain.
13. The Committee reiterates its previous recommendations and calls upon the State party to (b) Give high priority to its law reform process and to modify or repeal, without delay and within a clear time frame, all discriminatory legislation, including discriminatory provisions in the Penal Code, Family Law, and Nationality Law, and to sensitize parliamentarians, religious and community leaders, women human rights defenders and the general public on the need for legislative reform.
35. The Committee recommends that the State party expedite the adoption of the 2014 draft amendment to the Nationality Act and revise it to ensure that Bahraini women have the same right as Bahraini men to transfer their nationality to their children, including when they are married to a foreign spouse.
Therefore, due to the incompatibility of the Bahraini Citizenship Act of 1963, recommendations 12(b), 13(b), 34, and 35 of the CEDAW Committee called on Bahrain to make every effort to amend all discriminatory legislation and provisions relating to, among other, the Nationality Law, so that the same rights are granted to women as to men.
Legal analysis with regard to the DEVAW
In 1993, the Declaration on the Elimination of Violence Against Women (DEVAW) was adopted to reinforce and reaffirm CEDAW, whose full implementation would render obsolete the present Declaration, which focuses on violence against women. Concerning the legal analysis of international women’s rights standards, and Bahraini legislation, DEVAW applies in that it specifies that any cultural justification for discrimination against women is contrary to international human rights standards. Article 4, therefore, codifies this principle, stating that states “should not invoke any custom, tradition or religious consideration to avoid their obligations,” and therefore should, according to Article 4(j), “adopt all appropriate measures … to modify the social and cultural patterns of conduct of men and women and to eliminate prejudices, customary practices, and all other practices based on the inferiority or superiority of either of the sexes and on stereotyped roles for men and women”.
The reservations made on the two major human rights treaties governing women’s rights, namely the CEDAW and the ICCPR, are justified by the prescriptions of Islamic Shariah. It may be considered contrary to Article 4 of the DEVAW.
Legal analysis with regard to the Beijing Declaration
Later, in 1995, the Beijing Declaration and the Platform for Action were adopted and became a key global policy document on gender equality. It urges States to “take all necessary measures to eliminate all forms of discrimination against women and the girl child and remove all obstacles to gender equality and the advancement and empowerment of women.” As a reference framework to analyze the situation of women around the world, the Beijing Declaration assesses the efforts of States by reviewing, every five years, national and regional advancements. A final global synthesis is, in the end, released. The past review process, Beijing +20, reaffirmed that one of the remaining challenges is gender discriminatory provisions concerning family matters, namely nationality laws. In view of Beijing 25+, the Secretary-General of the United Nations published its observations E/CN.6/2020/3, which urges States to ensure equality and non-discrimination under the law. The report highlights the remaining 25 countries denying women the right to pass their nationality on to their children equally with men.
Bahrain responded in 2019 in its National Report Regarding the Progress of Implementing the Beijing Declaration and Platform for Action 2020 that “a draft law amendment, to promote equality and non-discrimination against Bahraini women” was in progress. However, this draft law initiative dates back to 2014. Without any substantial improvement in law or practice in eliminating gender discrimination, it is not consistent to assume Bahrain has taken “all necessary measures to eliminate all forms of discrimination against women.” Therefore, Bahrain’s national legislation has not yet been in line with the Beijing Declaration, and the current obstacles to gender equality posed by discriminatory citizenship laws have not yet been overcome.
Legal analysis with regard to Bahrain’s UPR
Finally, a new cooperation and review instrument was established in 2006 by the UN General Assembly, at the same time as the Human Rights Council, to examine the human rights situation of the 193 UN member states. This is the Universal Periodic Review (UPR), a State-driven process allowing each State to disclose its actions to enhance human rights conditions. Operating on a cyclical basis of four and half years, States review national reports by drawing up recommendations for improving respect for human rights.
The latest concluding observations made by the Working Group on the Universal Periodic Review on the situation in Bahrain were published on 11 January 2023. These reinforce the non-compliance of the Bahraini Citizenship Act of 1963 with international human rights instruments. Indeed, 12 recommendations, all made by different States, directly target the discriminatory aspect of this law towards women and the need to amend it to bring it into line with gender equality, such as the following recommendations:
124.233 Take steps to end discrimination against women, including by allowing Bahraini women to transfer their Bahraini citizenship to their children (Norway)
124.239 Amend the Citizenship Law and other relevant legislation to allow women to transfer Bahraini nationality to their children without restriction and on an equal basis with men (Canada)
124.238 Amend and harmonize laws and policies to ensure Bahraini women the right to pass citizenship to their children (Slovenia)
Conclusion
This legal analysis must be considered in the holistic context of all the international instruments governing women’s rights and the right to nationality. Indeed, while the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) may be invoked when statelessness occurs due to inequality between men and women concerning the acquisition, change or retention of nationality and passing on of nationality to children, the 1948 Universal Declaration of Human Rights (UDHR), the 1993 Declaration on the Elimination of Violence Against Women (DEVAW) and the 1995 Beijing Declaration and the Platform for Action focused on the guarantee of the right of women in a broader sense.
Finally, the recommendations of the country’s Universal Periodic Review (UPR), the Human Rights Committee, and the Committee on the Elimination of Discrimination against Women (CEDAW Committee) enabled the direct analysis of the criticized law about the corresponding legal human rights standards.
Consequently, based on the analysis carried out above, it must be concluded that the Bahraini Citizenship Act of 1963 does not provide for gender equality. This assertion is confirmed by the joint report published in 2019 by the United Nations Economic and Social Commission for Western Asia (ESCWA), the United Nations Development Programme (UNDP), United Nations Population Fund (UNFP), and UN Women, stating that nationality law in Bahrain does not comply with international human rights standards, neither the recommendations of the CEDAW Committee, nor the country’s UPR. Ultimately, the case is the same for international human rights mechanisms: the UDHR, the ICCPR and its Human Rights Committee, the DEVAW, or the Beijing Declaration and the Platform for Action.
