The rights of children of Libyan women married to foreigners   

National Unity Government Decree No. 209 of 2022 and its impact on the legal status of children of Libyan women married to foreigners  

Khadija Elboaishi 

Rule of law expert

Resolution No. 209 of 2022 was recently issued by the Presidency of the Government of National Unity regarding granting the sons and daughters of Libyan women married to foreigners all citizenship rights. This decision had a mixed reception with some expressed their delight as they regraded this decision as significant human rights achievement, and others who were sceptical about the timing of issuance of the decision and the intentions of behind it. This revives the debate regarding the legal implications of this decision and its impact on the legal status of sons and daughters of Libyan women married to foreigners, and whether these children should have the same rights as the children of Libyan men who enjoy the right to pass on their nationality to their children without restriction or condition.  

    To discuss the legal implications of this decision on the legal status of the sons and daughters of Libyan women married to foreigners, this article will address the issue in terms of the legal basis regulating the nationality bond in Libya, and what are the basis of which foreign nationals are determined, followed by a review of some laws that limit the enjoyment of Libyan nationality. Further, we will study the legal effects of the decision issued by the Government of National Unity on the status of the sons and daughters of Libyan women married to foreigners in terms of their enjoyment of citizenship rights, all of which will be in the light of legislation of the Libyan national laws and regulations and perusal of the relevant international human rights conventions.  

    Nationality is meant as a legal and political bond between the individual and the state, based on which The People as one important pillar in the country is determined. The Libyan legislator has regulated the Libyan nationality and the conditions for obtaining it in accordance with several legislations, the most recent of which is Law No. 24 of 2010, which is currently in force, which stipulates in Article 3 of it that whoever is born in Libya to a Libyan father is considered a Libyan if the father’s nationality was acquired by virtue of his birth in Libya or he was naturalized. The same paragraph stipulates that whoever is born outside Libya to a Libyan father is considered Libyan if the child’s birth is registered within one year from the date of its occurrence at the Libyan embassy/consulate abroad.  

   Based on what was stated in the above article, the enjoyment of the “reconstructive” Libyan nationality is either based on the right of blood only on the part of the father based on birth to a Libyan father in Libya or abroad. Rather, the article stated that any child will be  considered Libyan by force of law if they were born to a Libyan father citizen, regardless of the nationality of their mother and their place of birth, but also regardless of the fact that the child may acquire another nationality by virtue of their birth in a foreign country outside Libya or by virtue of acquiring the nationality of their mother, while the Libyan legislator ignored in this law the provision for acquiring the Libyan nationality based on the right of blood on the mother’s side.  

  In order to avoid this discriminatory gap against Libyan women, the legislator tried to fill it in a defective way, according to the text of Article 11 of the Nationality Law, which stipulates that it is “permissible” to grant the sons and daughters of Libyan women married to foreigners the Libyan nationality according to the conditions contained in the executive regulations, and therefore the nationality is not transferred automatically, but It requires the fulfillment of certain conditions, following subsequent procedures, and obtaining approval to transfer the nationality in order for the Libyan son or daughter to be considered a citizen of Libya, unlike the situation with regard to the children of the Libyan father.  

   Referring to the executive regulations and reviewing the conditions to grant Libyan nationality to children of a Libyan women married to foreigners, we note that according to Article 6 of the regulations, several conditions were required, including the submission of documents such as the approval of the competent authority in the Ministry of Social Affairs to marry, the consent of the parents, and the certificate of the mother’s nationality. And the death of the father or the deputation of his loss by a court ruling. Rather, despite all these conditions, even if all of them are met, it is permissible for the competent authorities to agree or refuse to grant citizenship.  

    Therefore, from a legal and human rights perspective, these provisions contained in the Nationality Law and the Regulations expressly conflict with the Libyan Constitutional Declaration and also with the international obligations of Libya. If the Constitutional Declaration in its sixth article explicitly states that Libyans are equal before the law and equal in enjoying civil and political rights, the requirement of certain conditions for Libyan female citizens (but not male citizens) for transferring their nationality to their sons and daughters represents discrimination based on gender, which is inconsistent with what was stated in the Constitutional Declaration, which was supposed to amend all laws that contradict it after its issuance, but the decision-makers at that time  only amended the laws that carried some of women’s rights gains, and the amendment was to strip those gains and abolish them.  

   It is also in accordance with the Convention on the Elimination of All Forms of Discrimination against Women, to which Libya acceded on 5/16/1989 and which was published in the Official Gazette in a special issue in the year 2009, in the text of Article 9 in its second paragraph on the state’s commitment to grant women equal rights to men. With regard to the nationality of their children, which is an article that is not reserved by Libya, and it is known a priori that one of the effects of joining international agreements is that the state must amend its laws in accordance with its international obligations and that it recognizes the rights contained in those agreements in its national laws and provides Protection for individuals to enjoy those rights and to criminalize the violation of those rights or derogation from them, but Libya, despite its accession to the Convention since 1989, has not amended its laws, especially with regard to the subject of this article, and to eliminate discrimination against Libyan women in their right to transfer their nationality Not her/her daughters.  

   Returning to the fundamental issue under study in this article, which is the legal status of the sons/daughters of Libyan citizens married to foreigners. According to all of the above, unless they obtain approval to grant them citizenship, they are considered foreigners in Libya regardless of the fact that their mother is a Libyan citizen – and the context is not sufficient in this regard. The article is about derogating from the right to full citizenship for Libyan women only because of their marriage to foreigners, and perhaps I will deal with this matter in a later article – and the legal impact of their being foreigners, although they have the right to enjoy basic human rights and benefit from the public facilities of the state, but they do not They enjoy citizenship rights, such as political rights in general, the right to hold public office, the right to own real estate in Libya, and other citizenship rights. Rather, their entry into Libya and their residence in it are subject to entry and residence procedures for foreigners, including the requirement for an entry visa and residence in Libya. According to legal requirements.  

    This is what the Libyan legislature adopted in many related laws in which the individual’s enjoyment of rights was limited based on his/her being a Libyan citizen. Nationality is the basis for enjoying citizenship rights. For example, according to Law No. 17 of 1962 regarding the entry and residence of foreigners in Libya and their exit from it, Article 1 From it, it stipulated that whoever does not enjoy the Libyan nationality – including the children of Libyan women married to foreigners – is considered a foreigner in the application of the provisions of this law. On a valid visa, and based on this, the entry and residence of the sons / daughters of Libyan women married to foreigners are subject to the procedures, as the law did not provide for the exception of the sons and daughters of Libyan women married to foreigners from these conditions, but that they would also be threatened with deportation and revocation of residence and Accused of illegal presence in Libya in the event of entry without a visa or non-renewal of residency, especially if they are sons/daughters of a foreign husband who is not a national of an Arab country.  

  In addition, the Libyan Labor Law stipulated, among the conditions for candidacy to occupy one of the positions of the cadres of administrative units, that he have the Libyan nationality, and the Judicial System Law No. 6 of 2006 stipulated in Article 43 that whoever is appointed in a judicial body should have the Libyan nationality, in addition to Advocacy Law No. 3 of 2014 in Article 4 stipulates that the applicant for registration to work in the legal profession must be of Libyan nationality, and also the laws regulating the various elections, whether at the national or local level, stipulated that the candidate and the voter must be Libyan, all of the above is an example Not limited to Libyan laws that stipulate citizenship in order to enjoy rights.  

     The question that arises here is whether the recent decision by the Prime Minister of the Government of National Unity represents an amendment to the laws with regard to citizenship rights and thus extends the effect of enjoying these rights to the sons/daughters of Libyan women married to foreigners, or is its impact limited to the rights contained therein, for example with regard to free education and treatment?  

  Through a careful and critical reading of the texts of the decision, although the first article of it stipulates that the sons/daughters of Libyan women married to foreigners enjoy all the rights that a Libyan citizen enjoys, but in reality it is not so. The legislative authority, such as the right to political participation and the right to hold public office and represent the Libyan state, remains as it is without any amendment. The decision cannot be invoked to amend a law according to the legislative hierarchy, which is supposed to be compatible with the laws, not the other way around, and as long as the sons/daughters of Libyan women Women married to foreigners are still foreigners in the eyes of Libyan law, so they do not enjoy citizenship rights.  

However, the rest of the text of the first article of the decision related to their enjoyment of free treatment, education, and admission to Libyan schools abroad are rights that may be used based on this decision, and it is a small step in a long way to recognizing the full citizenship of Libyan women and their right to transfer their nationality, not their sons / daughters .  

The expected ceiling of the national unity government for the claims of Libyan female citizens married to foreigners was high, especially since the representation of women in the government exceeded its predecessors. It was expected that the executive regulations of the Nationality Law would be amended and that the burden of conditions restricting the transfer of nationality of Libyan female citizens to their sons and daughters would be removed from the list. An acknowledgment of the right to equality in the law between male and female citizens, and that this amendment be a step towards achieving an amendment to the nationality law by the legislative authority in accordance with the constitutional declaration that stipulates the right to equality in the law without discrimination and in implementation of the obligations of the Libyan state that it has undertaken Since 1989.  

The issuance of the decision may in itself be considered a gain in that it brought the case back to the fore and highlighted a human rights problem facing many Libyan women and their sons/daughters. The controversy sometimes paves the way for raising awareness of human rights claims and paves the way for making a positive difference in the lives of the victims. However, the treatment that This decision presented it to the problem as a treatment that the thirsty would think of as water, even if he demanded its implementation, he would discover that it is a mirage that does not quench hunger and does not satisfy hunger.  

Addressing the problem of the rights of the sons/daughters of Libyan women married to foreigners requires seriousness and a political will that recognizes the full citizenship of the Libyan woman as a partner in the homeland, with no guardianship over her, no diminution of her rights, or discrimination against her. This requires a legislative amendment to the Libyan nationality law so that everyone born to a Libyan father or mother is a Libyan And in the event of difficulty in approving a legislative amendment, the government still has the possibility of amending the executive regulations of the Nationality Law, which stipulated unfair discriminatory conditions that prevent the sons / daughters of Libyan women married to foreigners from obtaining Libyan nationality, and in addition to the amendment in laws and policies, raising awareness of the challenges faced by Libyan women Women married to foreigners, including their inability to transfer their nationality to their sons and daughters. It remains the responsibility of civil society organizations and human rights defenders, as well as the various media, to create an opinion and awareness of these issues and their impact on society as a whole and on Libyan women in particular, because this awareness In turn, it will create supportive public opinion and pressure on decision-makers to bring about legislative changes in favor of Libyan women and their rights.