“As a woman I want no country”: Citizenship, Nationality and International law”
Dame Roma Mitchell Memorial Lecture – Kim Rubenstein (Law Institute of Victoria, 6 March 2003)
I would like to begin by acknowledging the Wurrundjeri people, the traditional owners of the land upon which we are meeting today.
I am extremely honoured to participate at this event in honour of Dame Roma Mitchell – an event that has also been set to coincide with International Women’s Day. I take that timing to mean that this event not only highlights the wonderful career of Dame Roma Mitchell, but also the many women in law who have set milestones that have become truly significant for all women lawyers seeking to make an impact on the public world in which we participate.
Dame Roma Mitchell set many “firsts”. She was Australia’s first woman QC, the first woman to be appointed to a state Supreme Court, the first woman Vice Chancellor of a University and later the first woman Governor of an Australian state. I never met Dame Roma, although she opened a conference that I attended in Adelaide in 1995 and I remember her distinguished presence.
I knew of Dame Roma, though, from an early age – well before I had any sense of wanting to study law. I am delighted that both of my grandmothers, Fanny Rubenstein and Bobby Joseph are here today, and they will respectively be celebrating their 92nd and 90th birthdays this year! My Nanna Bobbie is the younger sister of the late Joan Rosanove – who many of you will know was Victoria’s first female QC. I remember as a child being told that Nanna’s sister Joan was not Australia’s first woman QC – but rather Victoria’s first woman QC, and that Roma Mitchell had beaten her to that title!
On looking at material that has been written about Joan Rosanove, I see that Joan applied to be a QC before Dame Roma was appointed in South Australia, and while it appears Joan may have been personally disappointed in not getting there first in Australia, I have no doubt that she would have felt a bond with Dame Roma – in their experiences of life as woman lawyers in that period. Joan Rosanove spoke in 1951 at a meeting of the Legal Women’s Association of the discrimination shown against legal women in appointments to commissions, boards, or any other honours, including appointment to the judiciary itself. Joan is quoted as saying “..if any of you suffer any illusions that women lawyers receive real recognition, whatever their ability and qualifications, it is time those illusions were dispelled”.
Sadly, in some respects, there haven’t been as many great advances as we may have anticipated in the 40 years since Dame Roma was appointed Australia’s first woman QC. This year is the first year since the inception of this memorial lecture, that we no longer have a woman on the High Court of Australia. Moreover, those of you who attended the inaugural Dame Roma lecture in 2000 will remember this quote Hilary Charlesworth shared, of Dame Roma’s views on discrimination. Dame Roma said:
“I always thought that if you quietly infiltrated the system then gradually women would just be there and discrimination would go away. It became clear to me that this quiet method … was not going to be very effective. You can’t just let things go along. You’ve got to do it by affirmative action”. She concluded “When people go on against affirmative action it usually takes the wind out of their sails when I say “I might have thought that fifteen years ago, but I’ve moved on”.
The Australian High Court hasn’t moved on, in fact, it has moved backwards regarding women. It is truly an injustice to the Australian public, and those many women eminently qualified to appointment to the High Court of Australia, that there is no female High Court Justice. Dame Roma’s views need to be preached as far as possible in not letting things just go along – and the Victorian Women Lawyers Association and the Australian Women Lawyers Association have committed themselves to the spirit of Dame Roma in many ways, including the holding of this event on an annual basis.
In stark contrast to the Australian High Court, the newly created International Criminal Court in its ninth round of voting on 7 February 2003 elected its 7th woman judge: Anita Usacka, from Latvia. One only has to look to the Rome Statute to understand how 7 women judges out of the 18 positions have so far been elected. In the election process, a procedure was used to meet minimum requirements for the representation of the principal legal systems of the world, equitable geographical representation and a fair representation of female and male judges. Representatives were required to vote for at least three candidates from the Group of African States, two candidates from the Group of Asian States, two candidates from the Group of Eastern European States, three candidates from the Group of Latin American and Caribbean States; and three candidates from the Group of Western European and Other States. Representatives were also required to vote for at least six male and at least six female candidates. A system that takes into account geographic regions and gender would certainly improve the composition of the current Australian High Court and this is something certainly worth moving on.
The international legal system is taking on board gender issues in the practice and substantive content of law and it is to the international framework that I will now turn. As many of you know, my primary research interest over the years has been in constitutional law, administrative law and more recently citizenship law. Over the past 6 months in Washington DC I had the opportunity to develop my thinking on citizenship in the international law framework. Having not taught international law myself or even formally studied it, this has been a new area of research for me!
When thinking about citizenship issues in the international framework, the discussion is technically about nationality – the country one is formally said to belong. “Citizenship” – one’s legal connection to the state and “Nationality” are terms that are often used interchangeably to describe the relationship between the individual and the State. As we all know, international law is primarily about States. Traditionally, international law has not been interested in the individual. For instance, individuals do not have standing before the International Court of Justice – States do. So if an individual seeks to raise a matter before the Court, he or she requires a State to do so on his or her behalf. This is just one instance where the legal status of nationality is fundamentally important. The International Law Association’s Committee on Feminism, has stated that nationality is in fact one of the most important rights a state can assign to an individual. This is because there are many areas of international law where an individual’s legal status is defined by their nationality.
My work, entitled “Shifting membership – Rethinking Nationality in International law” is seeking to move beyond nationality when identifying the legal status of individuals in the resolution of disputes. Nationality, in my view, is far too confining and conceptually imprisons individuals in their states cut off, often, from their race, religion, gender, employment, and the many other defining characteristics that far better represent human complexity and experience. Human rights law represents some steps in the direction away from the narrowing notion of nationality, but there are many other areas of international law that could be encouraged in that direction also.
Historically, in domestic law and international law, women have been discriminated against when it comes to nationality. This discrimination is reflected in Virginia Woolf’s often quoted statement from her book The Three Guineas:
“As a woman, I have no country. As a woman I want no country. As a woman my country is the whole world”.
To give you a flavour of the work I have been doing, I will look at each of these statements in light of the domestic Australian experience and international law.
“As a woman, I have no country”
The first reference to having no country reflects the legal position of those women who had lost their citizenship by virtue of marriage to a non-national. Virginia Woolf experienced this in her marriage and this was the historical position in many countries, including Australia.
Section 18 of The Nationality Act (Cth) 1920 provided for the loss of British subject status for women who married aliens. This was then amended in 1936 and again in 1946 before the Australian Citizenship Act 1948 (Cth) was enacted. The 1936 amendment only entitled women to regain their British subject status, having lost it on their marriage to an alien, if their husband naturalised and the women then had the opportunity to make a declaration of naturalisation once her husband was naturalised. The more progressive change came with the 1946 Amendment Act. This reinstated British subject status to women who had lost their British subject status by virtue of marriage to an alien before the commencement of the section. This was also provided for in the Australian Citizenship Act 1948 (Cth).
The current international position regarding nationality has certainly improved but it is by no means perfect. Article 9 of the Convention on the Elimination of All Forms of discrimination Against Women recognizes that women should have equal rights with men to change, acquire or retain their nationality. Article 9 also recognizes that gender discrimination in nationality and citizenship should not be visited upon children. The fact that a significant number of states have made reservations to Article 9, however, attests to the work that remains to be done if women are to achieve equality in this context.
“As a woman I want no country”
This second part of Woolf’s quote reflects her rejection of nationalism, yet her writing shows her immediate ambivalence with the statement because of her sense of connection to England. Many people empathise with Woolf’s statement as they are unsympathetic to nationalism particularly when it becomes the motivator for war. At a minimum, feminist writers highlight the multiple stories of nationalism depending on gender, class, race and ethnicity.
Helen Durham’s Dame Roma Mitchell presentation last year looked at international humanitarian law. My current research on the role of nationality in international law also looks at humanitarian law and the way it has developed around the concept of nationality, and I argue that a focus on the nation in international armed conflict is outdated, and that nationality should not be the focus for the development of humanitarian principles.
The situation in the former Yugoslavia is one context in which I develop that research, and the place of women in the peace framework in the former Yugoslavia has been the subject of an excellent project by Christine Chinkin and Kate Paradine in their article “Vision and Reality: Democracy and Citizenship of women in the Dayton Peace Accords. They examine the gendered meanings of the concepts of democracy, citizenship and human rights in the context of the General Framework Agreement for Peace in Bosnia and Herzegovena negotiated in 1995. They comment in their section looking at Human Rights and the GFA:
“Women in Bosnia and Herzegovina are trapped in a concept of citizenship that is defined along nationalist lines, demarcated by legally drawn borders and enforced by the international community in a way that leaves little room for negotiation. The collusion of nationalism with religious affiliation that was furthered by war means that women’s experience of citizenship is also constrained by religious stipulations. The West simply failed to investigate the reality of nationalism as inevitably sexist and antithetical to women’s experience of choice. The internal borders are legally constructed as porous, in that freedom of movements of persons goods and capital is guaranteed throughout Bosnia and Herzogovina. The GFA also recognizes the possibility of ethnic association across external borders but it does not explicitly mention other forms of external association. However, the free movement of persons across the Entities is an illusion when other identities – family, gender, neighbors – have been destroyed by the violence perceived primarily in ethnic terms.”
The inherent nationalism in “nationality” as a legal concept does not sit well with women’s experience of identity and membership. It is that concept that is well expressed in Woolf’s statement, “as a woman I want no country”. In my view there is great potential in international law to move beyond nationalism as the defining concept and to look for more fundamental links between individuals and communities when resolving legal disputes.
“As a woman my country is the whole world”
This aspect of Virginia Woolf’s quote speaks to a cosmopolitan world where
an individual’s nationality is less significant than her humanity. Cosmopolitanism is a contested term, varying from the universal citizen to citizens who have a “wide variety of affiliations” ranging from the local to the global. There is a cosmopolitan view of international law that sees people enjoying multiple memberships, and individuals being citizens of their immediate political communities at the same time as wider regional and global networks. 
Feminist scholarship has long recognized that individuals have multiple and often shifting memberships. My current work, in rethinking the centrality of nationality in international law, involves a more nuanced and holistic approach to international law. So, there will be instances where aspects of the territorial nation-state will still be relevant and, in others, ethnicity or gender may be relevant. In other contexts still, membership of green peace or a particular religious group is significant. This research advocates a contextual approach in determining and relying upon membership in international law.
It is this sort of approach that is reflected in the composition of the new International Criminal Court – it aims to draw upon a range of experience relevant to the institution – and nationality is not the only significant factor – legal systems, and gender have also been deemed relevant to that framework.
Australia is a proud member of the international legal system and as women lawyers we have a responsibility to our fellow Australians and fellow humans to work towards a strong international legal system. This means we need to work on both the domestic and international fronts.
As Angela King, Assistant Secretary General and Special Adviser on Gender Issues and Advancement of Women in the UN said before the elections began to the ICC
“… we must emphasize that the choice of judges for the ICC is up to Member States, first to nominate, then to elect. This means, of course, that they should also appoint women judges at the national level. They need encouragement and pressure from groups such as the Women’s Caucus for Gender Justice, national NGOs, and groups of professional lawyers and jurists.”
May Dame Roma’s fine example, inspire us all, to keep up that fight, of ensuring that woman’s voices are heard at all levels of public life, so that the entire community benefits from our collective and diverse experiences. In international law it means opening up the confining dialogue of nationalism to encompass the multiplicity of voices that make up the human experience, the deeply nuanced quality of women’s voices being a vital ingredient. Locally, it means swelling the chorus of the many and diverse women’s voices, so as to make it unthinkable for a government of laws to be administered solely by men – whether as Governor-General, Prime Minister, or as High Court Justice.
 Isabel Carter, Women in a Wig, Joan Rosanove, QC (Lansdowne, 1970) pp154-155.
 Susan Mitchell, Matriarchs (1987) pp36, 43 as cited in Hilary Charlesworth’s Inaugural Dame Roma Mitchell lecture, 8 June 2000.
 International Law Association, Committee on Feminism and International Law, Final Report on Women’s Equality and Nationality in International Law, (2000) page 10. See http://www.ila-hq.org/pdf/Feminism.pdf
 Woolf, V (1938) Three Guineas
 See s 18(5) of the Nationality Act 1920 (Cth) as amended.
 Parry cites the commencement as 7 November 1946.
 See International Law Association, Committee on Feminism and International Law, Final Report on Women’s Equality and Nationality in International Law, (2000) page 8. See http://www.ila-hq.org/pdf/Feminism.pdf
 Catherine Hall, ‘Gender, Nations and Nationalisms’ in Mortimer (ed.) People, Nation and State (I.B. Tauris, London, NY, 1999) at 45
 This is explained in the context of the former Yugoslavia in Kate Chinkin Christine and Paradine, ‘Vision and Reality: Democracy and Citizenship of Women in the Dayton Peace Accords’. (2001) 26 The Yale Journal of International law 103as discussed further below
 Chinkin Christine and Paradine, K. (2001). “Vision and Reality: Democracy and Citizenship of Women in the Dayton Peace Accords.” The Yale Journal of International law 26(1): 103-178.
 See Dannreuther and Hutchings K, R (ed.) Cosmopolitan Citizenship (McMillan Press Ltd and St Martin’s Press Inc, London and NY, 1999) in particular K Hutchings, ‘Political Theory and Cosmopolitan Citizenship’ in Hutchings K (ed.) Cosmopolitan Theory (MacMillan Press and St Martin’s Press, NY and London, 1999)
 See also P Berman, ‘The Globalization of Jurisdiction’. (2003 forthcoming)
 David Held, ‘Law of States, Law of Peoples: Three Models of Soveignty’. (2002) 8 Legal Theory 1 At 33.
 Opening remarks by Angela E.V. King Assistant Secretary-General and Special Adviser on Gender Issues and Advancement of Women at the Panel Discussion on “Fair Representation: the ICC Elections and Women”United Nations Church Centre 29 January 2003, at http://www.un.org/womenwatch/feature/icc/st29jan2003.html