What is the legal impact of the Womens

Convention on Nationality Laws?

Case study: Algeria

Asha Bangar
i6097137

Human Rights of Women

LLM Globalisation and Law
Faculty of Law
Maastricht University

Word Count: 4363

1.

Introduction

Nationality is the legal link that is shared between a person and a State which in practice
creates a form of membership that creates in rights and duties, for the individual and the
State. About 60 years ago, most States did not grant women equal rights as men in their
nationality laws1.

There has been much progress worldwide to change this unjust

discrimination in nationality laws, especially with the help of Article 9, paragraph 2 of the UN
Convention on the Elimination of all Forms of Discrimination Against Women (hereinafter,
Womens Convention) which states that States Parties shall grant women equal rights with
men with respect to the nationality of their children.2 Although most countries have ratified
the Womens Convention, discrimination still exists, both directly and indirectly. For instance,
fathers are allowed by law to transfer their citizenship to their children, but mothers cannot.
Without citizenship, the child faces many problems such as lack of access to education,
healthcare, employment and other services offered to citizens. There are presently 27
countries that have laws or policies that either prohibit or limit the rights of women with
regards to nationality rights, including the right to pass their nationality to their children3. In
contrast, men in these countries do not face such restrictions which implies that women are
not seen as full members of that society or at an equal footing as men. This form of gender
based discrimination is contradictory to the international obligation of States under the
Womens Convention and various other international which will be discussed in this paper.
This unjust treatment can also lead to a very undesired consequence not only for the mother
and child, but also for the State, i.e. statelessness4.
This research paper aims to explore the relationship between nationality and gender
equality in international law, in particular Article 9 (2) of the Womens Convention, and the
effect this provision can have on nationality laws, with a focus on its implementation at the
1

UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness 2015, 6 March
2015, available at: <http://www.refworld.org/docid/54f8369b4.html> [accessed 18 February 2016]
2
Article 9, UN Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180,
34, U.N. Doc. A/34/46 (1989)
3
UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness 2015, 6 March 2015,
<http://www.refworld.org/docid/54f8369b4.html> [accessed 18 February 2016]
4
A stateless individual is a person who is not considered as a national by any State under the operation of its
law, Article 1, UN Convention relating to the Status of Stateless Persons, G.A. Res. 526 A (CVII) (1954)

domestic level in the Democratic Republic of Algeria. The reason why Algeria has been chosen
as the focus country is because it is one of the first nation in the Middle East and North African
(MENA) countries, after Egypt (2004), to grant women equal status amongst men in their
nationality laws. Although Islam is the religion of almost all Algerians and is even the religion
of the State5 making it pervade over most aspects of life in the country, Algeria is considered
to be a relatively liberal country in the Muslim world. Even though there is still room for
improvement other issues of gender equality, there has been a development from a system
in which the nationality of children depended first and foremost on the nationality of the
father to a system in which the mother and father can pass their Algerian nationality on equal
terms. The reforms in the countrys Nationality Laws (See Annex) and Family Code allowed
women to be regarded as equal to men in conferring their nationality to their children. By
observing the reform processes and applying the good practices of Algeria, other Arab nations
can use Algeria as a model. This could encourage reforms within their own laws so as to
promote gender equality and find an equilibrium between countries practicing (full or partial)
Sharia law and democracy, so that they can meet their obligations under international law,
in particular its commitments to the Womens Convention.

2.

International Law

Traditionally international regulations on nationality were designed and applied in order

to minimize friction between states (though these regulations may have constricted states in
their attribution of nationality), they were made to benefit states, not individuals. However,
international law has come a long way since, community self-definition is constituting and
essential in the sense that it comes prior to any action of the community; what states do is
determined by the members who compose that state and since women make half the worlds
population they should be granted their fundamental human rights with regards to their
nationality. It should be mentioned that the principles of equal rights of men and women and
the principle of non-discrimination on the basis of sex are enshrined in the Charter of the

Article 2, Constitution of the People's Democratic Republic of Algeria 1989 (last amended 1996) [Algeria], 28
February 1989, available at: <http://www.refworld.org/docid/3ffc3b584.html> [accessed 18 February 2016]

United Nations as one of the duties of the organisation, further reiterated in the Universal
Declaration of Human Rights and then further elaborated in the Womens Convention. It has
also been urged by the Human Rights Council that States must reform nationality laws that
discriminate against women by granting equal rights to men and women to confer nationality
to their children [] There is a general consensus within the international community that
there should be gender equality in nationality laws.6 This section will look at the role of
international law in the advancement of gender equality of nationality laws.

1. Universal Declaration on Human Rights

Enshrined in various international legal instruments7, there is a general consensus within
the international community that nationality is a fundamental human right.8 In order to fully
grasp the importance of nationality, it is important to consider it in the backdrop of
international human rights law. Historically, states were entrusted with privileges and duties
regarding their citizens. However, these responsibilities have been extended beyond national
borders as a consequence of the Second World War. The creation of the United Nations led
to a concerted effort to plan an international agenda where representatives from different
legal backgrounds from regions all over the world took upon a mission to create an
international human rights framework- the Universal Declaration of Human Rights (UDHR).
Although it is a non-binding document (soft law), it has considerable legal influence and is
thus worth mentioning. The Declaration has been intensively elaborated in subsequent
international treaties, regional human rights instruments, national constitutions and other
laws in order to realise and safeguard various human rights.

A/HRC/RES/20/4, The Right to a nationality: women and children, UN Human Rights Council, 16 July 2012,
para 6
7
Article 6 and 15, Universal Declaration of Human Rights U.N. GA 217 A (III) (1948); Article 16 and 24 (3),
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21, U.N. Doc. A/6316, 999 U.N.T.S.
171 (1966); Article 7, Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/44/49 (1989); Article
6 (4), African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990); Article 7,
Covenant on the Rights of the Child in Islam, OIC/9-IGGE/HRI/2004/Rep.Final (2005); Article 9, Convention on
the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, 34, U.N. Doc. A/34/46 (1989)
8
Refugees International, Nationality Rights For All: A Progress Report and Global Survey on Statelessness
(2009), available at: <http://www.refugeesinternational.org/policy/in-depthreport/nationality-rights-all>
accessed 18 February 2016

The UDHR is based on the inherent dignity of all people and affirms equal right of both
men and women. It gives precedence to human rights over the power of the state. Although,
States are given the primary role to regulate the rights under the Declaration within their
national legislations, they are prohibited from violating them. Article 15 of the Declaration
states that everyone has the right to a nationality and that this right cannot be arbitrarily
deprived9. Gender inequality in nationality laws or reservations made under Article 9 (2) of
the Womens Convention contradict the object and purpose of the Declaration as it creates
and exacerbates the situation of statelessness as a side effect. This in turn deprives stateless
children from being recognized before the law, which is also prohibited in the Declaration
under Article 6. This is because citizenship to a nation is the precursor for the entitlement of
other rights. Thus, violation of the Womens Convention Article 9 (2) leads to the violation of
other human rights.

2. Convention on the Elimination of all forms of Discrimination against Women

In 1979, the UN General Assembly adopted the Womens Convention and there are
currently 189 states party to it10, which means that these governments have agreed to take
measures to improve the status of women in their respective countries. The convention
consists of 30 articles that define what constitute discrimination against women and also sets
an agenda for national action to end such forms of discrimination. The Convention describes
discrimination against women 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, regardless of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field.11 This is addressed via three interlinking principles of the
convention: substantive equality, non-discrimination and state obligation. The Womens
Convention is one of the most widely ratified UN treaties worldwide (with the exception of
the Holy See, Sudan, Iran, Somalia and Tonga which are not State Parties), yet, it is also the
9

Article 15, Universal Declaration of Human Rights U.N. GA 217 A (III) (1948)
United Nations Treaty Collection (2016), available at:
<https://treaties.un.org/pages/viewdetails.aspx?src=treaty> [accessed 19 February 2016]
11
Article 1, UN Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180,
34, U.N. Doc. A/34/46 (1989)
10

convention for which the highest number of reservations have been made. There are
currently 24 states that are party to the convention but have made reservations under Article
9 (2)12. These restrictions are most common in Middle Eastern and North African countries
where social and cultural conditioning of the womens place in law and practice has long
sparked controversy within the international community.
Women in countries that still face legislative restrictions when it comes to their
nationality rights and what they should be able to do with them, is a reflection of outdated
chauvinist societies that use culture and religion as the justification for legal discrimination
towards women. Nationality has no positive, immutable meaning, its meaning changes
with the changing character of the states [] it may acquire a new meaning in the future as
the result of further changes in the character of human society and developments in
international organization.13 Traditionally, international regulations on nationality were
designed and applied in order to minimize friction between states (though these regulations
may have constricted states in their attribution of nationality), they were made to benefit
states, not individuals. However international law has come a long way since; community selfdefinition and identification is constituting and essential in the sense that it comes prior to
any action of the community (whether it is civil, political, social, economic or cultural),
therefore what states do is in essence determined by the members who compose that state.
If women are not given equal footing as men in their nationality laws when it comes to
conferring their nationality to their children, it can be inferred that they are not seen as full
members of that national community. This is prohibited in article 15 of the Womens
Convention, which requires States to recognize women and men equally before the law, and
in article 16 of the Convention with regards to equality in the private sphere of women,
specifically matters relating to family life and marriage.

12

Bahamas, Bahrain, Barbados, Brunei Darussalam, Burundi, Iraq, Jordan, Kuwait, Lebanon, Liberia, Libya,
Madagascar, Malaysia, Mauritania, Nepal, Oman, Qatar, Saudi Arabia, Sierra Leone, Suriname, Swaziland,
Syria, Togo and United Arab Emirates. UNHCR, Background Note on Gender Equality, Nationality Laws and
Statelessness 2015, 6 March 2015, available at: <http://www.refworld.org/docid/54f8369b4.html> [accessed
18 February 2016]
13
Peter J. Spiro, A New International Law of Citizenship, 105 American Journal of International Law, 694,
2011, 7

3.

National Level

When Algeria ratified the Womens Convention in 1996, it became a legally binding
document which means that it is obligated to subscribe to the articles of the Convention and
effectively implement it as soon as possible. Based on the obligations under the Convention,
Algeria has to respect the right of women and cannot enact discriminatory laws, engage in
discriminatory practices and must repeal all discriminatory laws; the state also has to protect
the rights of women which requires that states ensure complaints and redress mechanisms,
prohibit discrimination and impose sanctions on discriminatory acts; it also has to promote
womens rights by raising awareness; and fulfil womens rights by taking positive steps to
provide enabling conditions, building womens ability to ensure equality and to remove
hurdles that women face both de jure and de facto. As a party to the Convention, Algeria is
required to act with due diligence which means that it could be held accountable for
discrimination towards women. It is also obliged to report to CEDAR on the Elimination of
Discrimination against Women (hereinafter: CEDAW) every four years on the progress and
measures taken to respect, protect, promote and fulfil its obligations under the Convention.
This section will observe how Article 9(2) of the Convention on gender equality in conferring
nationality to children has been implemented over time at the domestic level in Algeria.
The Algerian legal system is based upon a mixture of French and Islamic law. After 132
years under French ruling, Algeria became a sovereign State in July 1962 after an eight year
struggle for independence. During this war for independence, Algerian women had fought
alongside men and had achieved a sense of emancipation from their traditional roles and had
also gained recognition amongst men.14 Compared to other countries in the region, Algeria is
considered to be a relatively liberal country and the status of women in Algerian laws and the
Constitution of the Peoples Democratic Republic of Algeria of 1989 (amended in 1996) is a
reflection of this. The Algerian constitution guarantees equal rights to all citizens without
discrimination, this is supported in Chapter IV on Rights and Liberties under the Constitution

14

Zohra Bensembra, Algeria's women police defy danger and stereotypes, Reuters (2009),
<http://www.reuters.com/article/us-algeria-police-women-idustre5754s420090806> [accessed 19 February
2016]

which stipulates that no discrimination shall prevail because of [] sex15. The Constitution
also places a positive obligation on the states to ensure equality of rights and duties of all
citizens, men and women []16 so that Algerian citizens can perform their duty to transmit
[the common heritage] from generation to another.17 Nevertheless, Algeria is a Muslim
country and Islam has had a significant impact on Algerian society. The application of Sharia18
could hindered the granting of such equality; the laws of personal status 19 are an illustration
of this. Although Algerians are more religious now than they were under French occupation,
the women are also more independent and educated. Radical Islamist ideas that had caused
over a hundred thousand deaths during the years of civil conflict during the 90s led to the
rejection of radical ideas and the embracing of a more modern Islam, 20 however it is
questionable to what extent this is true for rural areas.

When Algeria became a party to the Womens Convention, it had made a reservation to
Article 9(2)21. Algeria referred to the content of its Nationality Law, stating that the
provisions of Article 9, paragraph 2, which are incompatible with the provisions of the
Algerian Nationality code and the Algerian Family Code22 (See Annex). The provisions of the
Algerian Nationality Code in force at that time only allowed women to confer their Algerian
nationality to their child if the father was stateless, unknown, or a non-national born in Algeria
as long as the Ministry of Justice does not object23. A child born to an Algerian mother in
Algeria or a father born outside of Algeria could only apply to acquire Algerian nationality
provide that a genuine link could be established i.e. sufficient duration and regular residence

15

Article 29, Constitution of the People's Democratic Republic of Algeria 1989 (last amended 1996) [Algeria],
28 February 1989, available at: <http://www.refworld.org/docid/3ffc3b584.html> [accessed 18 February 2016]
16
Article 31, Ibid
17
Article 32, Ibid
18
Article 2, Ibid
19
Article 112, Ibid
20
Michael Slackman, Algerias quiet revolution: Gains by women, The New York Times, May 26 2007, available
at: <http://www.nytimes.com/2007/05/26/world/africa/26iht-algeria.1.5876681.html?pagewanted=all&_r=0>
[accessed 19 February 2016]
21
CEDAW/C/DZA/1, State Partys Report, Algeria, UN Article on the Elimination of Discrimination Against
Women, 1 September 1998
22
UN Women, Convention on the Elimination of All Forms of Discrimination against Women: Declarations,
Reservations and Objections to CEDAW, available at:
http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm [accessed 17 February 2016]
23
Ibid

in Algeria, which would have to be approved by the Minister of Justice.24 This rule on the
transmission of nationality to children was a discrimination against women.

2 years after its accession to the Convention, Algeria demonstrated its commitment to
improving the interest and status of women by submitting its initial periodic report despite
the ongoing civil unrest. At the 20th session in 1999, Algeria first met with CEDAW (which
supervises the implementation of the Convention) in which CEDAR expressed its concern that
mothers cannot transmit their nationality to their children in the same way that fathers can
[] citizenship is a fundamental right which men and women must be able to enjoy equally25;
and recommended that Algeria reform its nationality law in order to conform with Womens
Convention Article 9 (2)26, among other reforms relating to gender equality in order to respect
its commitments to the Convention. This led to Algerian women organisations to use the
recommendations suggested by CEDAR to push the Algerian government for an all-inclusive
change.

After decades of inferior legal status, Code de lindignat, under French rule27, Algeria
enacted the first Algerian Nationality Law in March 1963. The new Islamic law had strict
restrictions on when a woman may pass her nationality to her children, for instance when the
father was unknown or stateless. With the momentum generated through the
abovementioned recommendations made by CEDAW, the government initiated the
reformation of its laws in 2003 in order to improve gender equality and the status of women.
The same year, the 20 Ans Barakat movement created by Algerian and French women to
overturn the Algerian Family Code that had been in force since 1984 also had an influence on
the government28; the movement considered the code to be a contradiction of Article 29 of

24

UNHCR, Preventing and Reducing Statelessness: Good Practices in Promoting and Adopting Gender Equality
in Nationality Laws (2014), available at: http://www.unhcr.org/531a001c9.pdf [accessed 18 February 2016]
25
A/54/38/Rev.1 (SUPP), Concluding comments of the Article on the Elimination of Discrimination against
Women: Algeria, UN Article on the Elimination of Discrimination against Women, 1999, para 83
26
Ibid, para 84
27

Bronwen Manby, Citizenship Law in Africa: A Comparative Study, Open Society Foundations, New York,
2010, p. 29
28
UNHCR, Preventing and Reducing Statelessness: Good Practices in Promoting and Adopting Gender Equality
in Nationality Laws (2014), available at: http://www.unhcr.org/531a001c9.pdf [accessed 18 February 2016]

the Algerian Constitution on the legal equality between women and men. In its submission of
the second periodic report before its meeting with CEDAR, Algeria had stated that the
government had introduced a bill before the parliament that would enshrine the principle
of gender equality.29 The bill was heavily deliberated in the Parliamentary Committee on
Juridical Affairs as it advanced several amendments recommended by the parliament which
were in support of womens rights. The revise Nationality Code was signed by President
Bouteflika 27 February 200530, the same day that the Algerian Family code was signed. The
new Nationality code removes the limitations of Algerian mothers to pass their nationality to
their children, replacing the prior restrictions with a broader provision that grants Algerian
nationality to all children who are born inside of outside of Algeria to an Algerian mother or
father without distinction. The revised provision applies with retroactive effect which allows
individuals born to Algerian mothers and foreign/absent fathers before the reform are also
considered to be Algerian nationals. As a result, the reform prevents future cases of
statelessness but also existing cases. In 2009, Algeria removed its reservation made under
Article 9 (2) of the Womens Convention.

4. Legal impact of Article 9(2) on

Algerias Nationality Laws
Article 9 (2) of the Womens Convention emphasises the importance of gender equality in
nationality rights in relation to children. Gender based discrimination in nationality laws
impacts their womens rights with regards to their children and the ability for the children to
exercise other rights. Reservations made against 9 are not compatible with the object and
purpose of the convention as they are contrary to the essence of the convention. Such a
reservation excludes one of the fundamental obligations under the convention and hinders
the commitment that is undertaken by the all parties to an effective implementation of the
basic principles of the convention. Laws that institutionalise second class citizenship of
29

CEDAW/C/DZA/CC/2, Concluding comments: Algeria, Committee on the Elimination Discrimination against

Women, 15 February 2005, para 8
30
UNHCR, Preventing and Reducing Statelessness: Good Practices in Promoting and Adopting Gender Equality
in Nationality Laws (2014), available at: http://www.unhcr.org/531a001c9.pdf [accessed 18 February 2016]

10

women lead to the discrimination and injustices against women. Furthermore, Article 9 (2) of
the Womens Convention has been influential in recognizing that discriminatory nationality
laws can result in statelessness. Article 15 of the Convention further reaffirms the recognition
of equality before the law between women and men, especially in the scope of their legal
capacity. Algerias case shows that CEDAW moved aggressively in applying treaty terms to
nationality laws in practice.

The UNHCR monitors nationality laws in order to track stateless populations31 with
special attention to children that are stateless or are at risk of statelessness which leads to
the hindrance of other basic rights and susceptibility to human trafficking. In its reports, it has
indicated various times that gender discrimination in nationality laws leads to this undesirable
situation. It has raised concern over gender inequality in nationality laws for a long time now
and has stated in its reports32 that this discrimination aggravates the situation of
statelessness, which in turn aggravates the situation of human trafficking. These interlinking
phenomenons affect mostly women and children.33 In most situations, a child could obtain
his or her nationality from the father; however, if the father does not take steps to confer his
nationality to his child or if he himself is stateless, then the child may also be vulnerable to
becoming stateless. Consequentially, the child would have no documents to prove his identity
(i.e. passport) and as a result will find it extremely unlikely to have access to basic human
rights such as healthcare34, education35 and employment36 to name a few, which are
necessary for a fulfilling and dignified standard of living. The development of Algerias
nationality law so as to provide women equal rights with men regarding conferral of their
nationality to their children shows that international law can also come to protect womens

31

Ibid
UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness 2015, 6 March 2015,
<http://www.refworld.org/docid/54f8369b4.html> [accessed 18 February 2016]; UNHCR, Displacement,
Statelessness and Questions of Gender Equality under the Convention on the Elimination of All Forms of
Discrimination against Women, August 2009, PPLAS/2009/02, available at:
http://www.unhcr.org/4a8d0f1b9.pdf [accessed 18 February 2016]; UNHCR, Preventing and Reducing
Statelessness: Good Practices in Promoting and Adopting Gender Equality in Nationality Laws (2014), available
at: http://www.unhcr.org/531a001c9.pdf [accessed 18 February 2016]
33
UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness 2015, 6 March 2015,
<http://www.refworld.org/docid/54f8369b4.html> [accessed 18 February 2016]
34
Article 25, Universal Declaration of Human Rights U.N. GA 217 A (III) (1948)
35
Article 26, Ibid
36
Article 23, Ibid
32

11

rights with regards to their nationality. These elements relating to citizenship practice are
developing through various channels of decentralised law making.
Jus sanguinis nationality laws of most countries in MENA, including Algeria before its
reform, grant citizenship through parental descent alone, with none or very few exceptions
of maternal descent. Discrimination in these circumstances is prohibited under Article 9 (2)
of the Womens Convention on the equal right of women with men with respect to their
childrens nationality. Although children born in wed-lock may bear the fathers nationality,
and therefore would not be rendered stateless, the inability to pass her nationality to the
child may still cause problems of residency, freedom of movement and access to state
benefits.37 Some women may not be aware of what impact having a child in or out of wedlock
with a non-national may have on her rights and the rights of her child, especially if the father
is of a country that follows a strict jus soli approach.38 If the mother is not allowed to pass her
nationality, the child is at risk of becoming stateless, which in turn leads to the deprivation of
other fundamental human rights. For this, Article 16 (1) of the Womens Convention on the
rights of women vis--vis marriage and family relations, is crucial as it gives women the same
rights are men on matters relating to their children regardless of their marital status. It may
also lead to problems in cases of termination of marriage, by divorce or death. For this, Article
16 (2) is very important as it requires the registration of marriage which releases women from
having to depend on their husbands in order to prove that the child has acquired their fathers
nationality. On the other hand, jus sanguinis, can also produce and perpetuate statelessness39
for the child, but their stateless status can also impact the rights of the mothers as well i.e.
the right to family life and unity, or the right to leave any territory accompanied with her
children which is a deprivation of their right under Article 16 of the Womens Convention and
Article 12 of the ICCPR respectively. Article 9 of the Womens Convention, as discussed in
Section 3, closed this legal gap in the nationality law of Algeria which use to worsen the
problem of statelessness.

37

UNHCR, Displacement, Statelessness and Questions of Gender Equality under the Convention on the
Elimination of All Forms of Discrimination against Women, August 2009, PPLAS/2009/02, available at:
http://www.unhcr.org/4a8d0f1b9.pdf [accessed 18 February 2016]
38
Ibid
39
D. Weissbrodt, The Human Rights of Non-Citizens, Oxford University Press 2008, p. 88.

12

The shifting legal landscape of Algerias 2005 Nationality Law Reform moved from the
supremacy of jus sanguinis a patre to jus sanguinis a patre et a matre (with no distinction).
The case of Algeria shows that reform was achieved through simple legislation that granted
women and men equal rights to confer nationality. The strategic mobilisation of women,
womens rights advocacy groups and other CSOs along with their engagement with CEDAW,
led to CEDAR making recommendations to the authorities of Algeria on the implementation
of their obligations under the Womens Convention. Consequently, it stimulated the
collaboration of governments and advocates at the national level, encouraging constructive
dialogue in fostering positive change. The fact that Algerias Family Code was (partially)
reformed at the same time as the Nationality Code was reformed illustrates the importance
of binding gender equality in national matters to broader gender equality agendas in order to
ensure that equality is comprehensive and all inclusive. The development shows that there is
a reconceptualization of nationality status at the international and national level (which in
turn reinforce each other), shifting from an identity (social) to a rights frame (legal).
Furthermore, it supplies coherence for future developments in other countries whose
legislations are (fully or partially) composed of Sharia and may secure the eventual hardening
of an international law.

5.

Conclusion

Prior to the 2005 Nationality Law reform, Algeria allowed only the conferral of nationality
by paternal descent with very few exceptions in special circumstances for women. As
discussed in Section 2, nationality is an internationally accepted fundamental human right
which is enshrined in various international and regional legal instruments. Restricting women
from conferring their nationality to their children, a right women have under the Womens
Convention Article 9 (2), is a direct discrimination towards women. States that are party to
Convention, are under a positive obligation to respect, protect, promote and fulfil womens
human rights. However, despite being State Parties, many MENA countries amongst others,
have made reservations under Article 9 (2) and continue this discrimination. Men in these
countries do not face the same barriers when it comes to passing citizenship to their children.
The fact that women are not given the ability to pass their nationality to their children is an
13

indication that they are not viewed as full and equal members of the national community.
Since nationality is a precursor for other rights, making a reservation under article 9 (2)
excludes one of the fundamental obligations under the convention. Islamic beliefs reflected
in Sharia law lead to prejudices being applied in practice, usually to the disadvantage of
women. The legal status of women in Sharia creates a key symbolic battleground over which
conservative and progressive extremes struggle to find an equilibrium. One the one hand,
some argue that Islam and family are the foundations of a healthy social order and that
foreign attempts to change that are Western agenda lead to moral corruption. Whereas on
the other hand, the international community finds it difficult to see the compatibility of
Sharia law with democracy. However, Algeria, an Islamic country has shown that it is indeed
possible to safeguard womens human rights as per the Womens Convention. With internal
and external pressures invoking Article 9 (2) of the Convention, Algeria changed its nationality
law from nationality based on paternal descent to nationality based on paternal and maternal
descent without distinction, thus granting women equal rights with regards to the nationality
of their children. The success of the reform processes in Algeria, discussed in Section 3 and 5,
are lessons that can be used to promote change in other countries. The commitment to
reform at the top levels of government, the growing social acceptance of gender equality and
advocacy by womens rights groups and other CSOs demonstrate that such momentums can
change the law, even in the Arab world where the Sharia exists. These revised laws also prove
to be a great benefit to the international community as it represents Algerias interest in
working together to not only promote gender equality, but also to curb the issue of
statelessness. Countries that still discriminate towards women in their nationality laws should
use Algeria as an example, using their opportunity to challenge present laws by either
approaching their governments directly, or with the help of international human rights
mechanisms such as CEDAW, or through both.

14

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15

Annex
Nationality code of law before and after reform.
Previous Legislative Provisions (<2000)

Reformed Legislative Provisions (2005>)

Article 6
The following are of Algerian nationality by
descent:
(1) the child born to an Algerian father;
(2) the child born to an Algerian mother and
unknown father;
(3) the child born to an Algerian mother and
stateless father.

Article 6

Article 7
The following are of Algerian nationality by
birth in Algeria:
(2) the child born in Algeria to an Algerian
mother and a foreign father who was born
in Algeria, unless the child renounces
Algerian nationality within one year
preceding his becoming of age.
Article 9
Algerian nationality by birth and residence
in Algeria:
Except when opposed by the Minister of
Justice [] the following acquires Algerian
nationality if, within twelve months
preceding his coming of age, he declares his
intention to obtain this nationality and if, at
the time of the declaration, he has his
habitual and regular residence in Algeria:
A child born in Algeria of an Algerian
mother and a foreign father himself born
outside Algeria.
The silence of the Minister of Justice, after a
delay of 12 months from the time of
completion of an application, indicates
acquiescence.

16

A person is considered Algerian if he/she is

born to an Algerian father or an Algerian
mother.