RIGHTS AND DUTIES OF DUAL NATIONALS Evolution and Prospects
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RIGHTS AND DUTIES OF DUAL NATIONALS Evolution and Prospects
Edited by: DAVID A. MARTIN Henry L. & Grace Doherty Charitable Foundation Professor of Law and F. Palmer Weber Research Professor of Civil Liberties and Human Rights University of Virginia, USA
and
KAY HAILBRONNER Professor of Law and Director, Research Center for International and European Law on Immigration and Asylum University of Konstanz, Germany
KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEW YORK
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Table of Contents
Preface David A. Martin and Kay Hailbronner
vii
Contributors
xi
I.
Foundations 1. Introduction: The Trend Toward Dual Nationality David A. Martin 2. Rights and Duties of Dual Nationals: Changing Concepts and Attitudes Kay Hailbronner 3. Multiple Nationality and the Postnational Transformation of Citizenship Linda Bosniak Comment: Bosniak on the Postnational Transformation of Citizenship Klaus-Dieter Schnapauff
II.
3 19
27
49
Specific Policy Fields 4. Effect of Nationality and Dual Nationality on Judicial Cooperation, including Treaty Regimes such as Extradition Stefan Oeter 55 5. Dual Nationality and Military Service: Strategy Number Two Stephen Legomsky 79 Comment: Dual Nationality and Military Service Olaf Reermann 127 6. Political Rights and Dual Nationality Peter Spiro 135 Comment: Political Rights of Dual Nationals in Turkish Law Nuray Eksi 153
Table of Contents
7. Challenges of International Cooperation in a World of Increasing Dual Nationality Rey Koslowski 8. Administrative Systems and Dual Nationality: The Information Gap Heike Hagedorn 9. Loss of Nationality: A Critical Inventory Gerard-Rene de Groot
157
183 201
III. National Practice 10. Under Two Flags: Dual Nationality in Latin America and Its Consequences for Naturalization in the United States Michael Jones-Correa Comments: Development of Dual Nationality under German Law Marianne Wiedemann Double and Multiple Nationality in Germany after the Citizenship Reform Act of 1999 Christine Kreuzer 11. Citizenship and Multiple Citizenship in Turkish Law Christian Rumpf Comment: Consequences of Dual Nationality with regard to Residence, Employment, Ownership in Immovable Property, Military Service and Holding Political Office in Turkish Law Nuray Eksi IV. Managing Dual Nationality Recommendations of the German Marshall Fund Project on Dual Nationality Index
vi
303
335
347 361
375 383 385 389
Preface
In 1998, when we first began thinking of this project, debates over dual nationality were coming to a head in our two countries. In Germany the new government had proposed a law that would for the first time expressly accept multiple nationality, largely as a way of encouraging or facilitating integration on the part of Germany's burgeoning non-citizen population, the majority of whom are Turkish nationals. In the end, the proposal proved sufficiently controversial that it was modified and greatly limited, but the legislation adopted in 1999 still marked a milestone on the road toward greater acceptance of dual nationality. In the United States, to call the situation in 1998 a controversy would be an exaggeration, especially in comparison with the high political salience of the dual nationality question in German politics. Nonetheless, the issue drew increased attention then as a result of major legal changes being adopted by Mexico, the source of the largest number of U.S. immigrants. As part of a strategy designed to improve the situation of Mexican emigrants in the United States, the Mexican legislature that year adopted amendments to its constitution and laws that would grant its citizens naturalizing elsewhere the right to retain Mexican nationality - a major change from previous doctrine, which had firmly opposed dual nationality. The measure was well accepted in Mexico, and only mildly noticed by most people north of the border. But a few commentators in the United States expressed worries about an anticipated jump in the number of dual nationals among the U.S. citizenry. With the growing, albeit uneven, acceptance of dual nationality on the part of both receiving states and sending states around the world, it seemed to us a fruitful time to launch a project designed to examine with care the legal and policy issues presented. The German Marshall Fund graciously provided funding. In order to facilitate a greater awareness of the full social and political context of recent debates, the project scheduled conferences over the course of two years in each of the four countries whose practices had initially drawn our attention: Washington, Mexico City, Berlin, and Istanbul. At those meetings the principal paper writers presented drafts of their work for discussion by the wider group, and we discussed the document presented in Part IV of this book as the Project Recommendations. At each location we also heard from other public officials, scholars, and commentators, and we thank them warmly for their contributions to our deliberations. Their insights are doutbless reflected in this volume, owing to the richness of the conversations.
Preface
Citizenship studies have enjoyed a major leap in interest over the last decade, but we thought that this project could focus in greater detail than earlier efforts on specific areas affected by the rise in dual or multiple nationality. Some earlier works have made broad assertions, with little effort at empirical documentation, about the impact of dual nationality, for good or ill, on military service, for example, or the exercise of political rights. We thought more light could be shed by looking in detail at what states are actually doing now in these arenas. For the project, therefore, we wanted to move beyond grand questions of theory or philosophy (while not neglecting them entirely), in order to take a disciplined look at practical questions that arise in a world where dual nationality becomes increasingly common. Our research plan therefore identified a few key policy fields for close comparative study, such as the rules affecting military service, judicial and diplomatic cooperation, political rights, and loss of nationality, as well as questions of administration. These essays make up the bulk of Part II, and they usually include the author's own insights on lessons learned and his or her normative recommendations. Part III extends the inquiry by taking a focused look at national practice by country or region. Some of the principal papers in both these parts are followed by briefer comments from other project participants addressing the topic area. The reader should be aware that the papers cover legal developments through late 2000, with only a limited opportunity to take account of further changes since then. The book begins, however, with a Part I on foundational issues. The first two essays, by the co-directors of the project, review existing trends in dual nationality, reflect on how the world community reached the current stage, and offer suggestions for future developments. The third chapter closes out this part with a critical assessment of the scholarly debate over dual nationality. In particular it addresses the literature's use of this status in developing wider theses, including the alleged arrival of a "post-national" era, and it unpacks the multiple understandings of citizenship implicated in such discourse. As project co-directors, we owe many debts of gratitude, not least to the authors, who have carried out significant and pioneering comparative research in preparing their chapters, as well as to the other participants in our project meetings. At the University of Konstanz, Ms. Marianne Wiedemann and Dr. Christine Kreuzer, of the Center for International and European Law on Immigration and Asylum, played instrumental roles. At the University of Virginia, major assistance in organization and research was provided by Christine Hart in the early stages, and further research help came from Azish Filabi, Grace Hyun Im, Yvonne Lamoureux, and Brooke Welsh as the project unfolded. Tina Baber provided patient, tireless, and careful assistance with the preparation of the final edited manuscripts. The Mexico City meeting was cosponsored by the Mexican Ministry of External Relations, who were gracious and generous hosts. We extend particular thanks to Pedro Boone, Lic. Jorge Cicero Fernandez, Amb. Leonardo Ffrench, Carlos Gonzalez Gutierrez, and Lic. Carlos Pujalte, as well as their colleagues. The Istanbul meeting was viii
Preface
cordially hosted by the Aybay Foundation, and we are grateful to Prof. Rona Aybay for making this possible. And above all, we thank the German Marshall Fund for its generous support. David A. Martin Kay Hailbronner
IX
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CONTRIBUTORS
Linda Bosniak is Professor of Law at Rutgers University School of Law, Camden, New Jersey, and a recent Fellow of the Program in Law and Public Affairs at Princeton University. Gerard-Rene de Groot is Professor of Law at the University of Maastricht, Netherlands. Nuray Eksi is Professor of Law at Marmara University, Istanbul. Heike Hagedorn, Ph.D., University of Minister, is now with the German Federal Ministry of the Interior. Kay Hailbronner is Professor of Law at the University of Konstanz. He is Director of the Center for International and European Law on Immigration and Asylum. Michael Jones-Correa is Associate Professor in the Department of Government at Cornell University, Ithaca, New York. Rey Koslowski is Associate Professor of Political Science and Faculty Fellow of the Center for Global Change and Governance at Rutgers University, Newark, New Jersey. Christine Kreuzer, Dr. jur., former research fellow at the University of Konstanz, is presently with the Hessischer Landtag. Stephen H. Legomsky is Charles F. Nagel Professor of International and Comparative Law, Washington University School of Law, St. Louis, Missouri. From 1999 to 2002 he served as Director of the University's Institute for Global Legal Studies. David A. Martin is Doherty Professor of Law and F. Palmer Weber Research Professor of Civil Liberties and Human Rights at the University of Virginia. From 1995 to 1998 he served as General Counsel of the U.S. Immigration and Naturalization Service. Stefan Oeter is Professor of Law at the University of Hamburg. Olaf Reermann was formerly Director General of the German Federal Ministry of Interior. Christian Rumpf, Dr. jur., is attorney at law, Diem and Partners. Klaus-Dieter Schnapauff, Dr. jur., is Director General at the German Federal Ministry of the Interior. Peter Spiro is Professor of Law, Hofstra University School of Law, Hempstead, New York. He undertook a study of the law of citizenship during a 1998-99 Open Society Institute Individual Project Fellowship. Marianne Wiedemann is research assistant at the Center for International and European Law on Immigration and Asylum, University of Konstanz.
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I. Foundations
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CHAPTER 1
INTRODUCTION: THE TREND TOWARD DUAL NATIONALITY
David A. Martin*
Dual or multiple citizenship has grown increasingly common, despite a global legal order nominally opposed to such a status.1 Because that opposition is more and more at variance with the needs and realities of an interconnected globe, where travel is cheaper, swifter, and more frequent, it has been widely but unevenly eroded. New practices that tolerate or foster dual nationality, however, have often sprung up without close scrutiny, or without systematic attention to their place within the wider web of globalizing changes. Such inattention may have been understandable - and tolerable - when dual nationality was rare and more than formally discouraged. But dual nationality is no longer an aberrant occurrence, of interest only to specialists in obscure bureaucratic or academic quarters. In today's conditions, the old arguments against the status no longer hold the same force they may have had 100 years ago. But - a point sometimes missed by enthusiasts for dual nationality or an alleged era of "post-national" citizenship some of those arguments address areas of genuine concern that should not be wholly lost from sight in the new circumstances. This volume represents an effort to explore those new conditions and new practices systematically, and to contribute toward The author would like to thank Azish Filabi for excellent research assistance in the preparation of this essay. Some of the discussion here parallels portions of the chapter on dual nationality appearing in the report of the Carnegie Endowment's Comparative Citizenship Project, Citizenship Policies for an Age of Migration (T. Alexander Aleinikoff & Douglas Klusmeyer, co-directors, Carnegie Endowment for International Peace 2002). That chapter resulted from the efforts of a working group for which the present author served as chair and principal writer. I shall generally use the terms citizenship and nationality interchangeably, because the technical distinctions are not pertinent to most of the discussion. (When the difference is significant, the text will so signal.) Additionally, most of this essay will speak only of dual nationality, but the observations apply equally to multiple nationals, i.e., those who hold three or more nationalities. David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 3-18 © 2003 Kluwer Law International. Printed in Great Britain.
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more thorough analysis of how the law on the rights and duties of dual nationals should evolve as a result. This introductory essay offers an overview of the changes that have occurred, tenders some explanations for the increasing acceptance of dual nationality, and maps a few suggestions for future policies.
I. BACKGROUND: THE GROWTH OF DUAL NATIONALITY DESPITE MEASURES MEANT TO CURB IT A. Evolution The world community entered the last third of the twentieth century with domestic and international legal orders that generally treated dual nationality as deeply undesirable. Whether this attitude derived from conceptual logic - postulating national loyalties as exclusive and indivisible - or from concerns about practical difficulties affecting diplomatic protection, military service, civil status, or taxation, it was nonetheless widely shared. The Hague Convention of 1930, meant by its framers to codify existing global doctrine on the conflict of nationality laws, begins with an oft-quoted preamble that states: "[E] very person should have a nationality and should have one nationality only."2 Court decisions have frequently spoken of the evils, dilemmas, or problems inherent in dual nationality, sometimes without elaborate argumentation in support of what must have been deemed an obvious conclusion.3 National laws reflected this hostile stance - most prominently in widespread requirements (found in the laws of both immigration and emigration countries) that taking up the citizenship of a new country through naturalization necessarily required the loss or renunciation of all previous allegiances. Even the Council of Europe, little more than a decade after drafting the European Convention on Human Rights,4 proceeded to adopt a 1963 Convention explicitly designed to reduce the incidence of multiple nationality, seeing no conflict between the freedoms of the former and the restrictions of the latter.5 Despite this formal legal framework, the last thirty-odd years have witnessed a significant proliferation of dual or multiple nationality.6 The principal reason, at work steadily but quietly, has been the expanding interconnection of the world Hague Convention Governing Certain Questions Relating to the Conflict of Nationalities, opened for signature April 12, 1930, 179 L.N.T.S. 89. See, e.g., Decision of 21 April 1974, 37 BverfGE 217, 254-55 (F.R.G.); Rogers v. Bellei, 401 U.S. 815, 831-33 (1971); Savorgnan v. United States, 338 U.S. 491, 500 (1950). European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5. Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, opened for signature May 6, 1963, 634 U.N.T.S. 221, Europ. T.S. No. 43 [hereinafter Multiple Nationality Convention]. See Miriam Feldblum, Managing Membership: New Trends in Citizenship and Nationality Policy, in From Migrants to Citizens: Membership in a Changing World 475, 478 (T. Alexander Aleinikoff & Douglas Klusmeyer eds., 2000). 4
Introduction: The Trend Toward Dual Nationality
community. New technologies have greatly facilitated communications, travel, and commerce, and in recent years these developments have been bolstered by a wave of political changes expressly promoting cross-border trade and investment. More and more people now live, for a time at least, outside their countries of origin - a phenomenon that touches on all levels of economic and social life. Cross-national marriages have proliferated, and the children in such cases now usually obtain both parents' nationalities by descent, under the widely applied rule of jus sanguinis. By UN estimates, more than 185 million people, a steadily growing figure, now live outside their countries of nationality. Therefore, even when parents share the same nationality, an increasing number of births are occurring outside the national territory. If the country where the birth takes place observes the territorial rule for transmission of citizenship, the jus soli, the child then typically gains multiple nationality. Further, lengthy residence abroad often results in permanent settlement there, bringing with it inducements to consider seriously the option of naturalization, despite continuing ties to the country of origin. In this climate, many legal provisions have changed to accommodate dual nationality. The Council of Europe, source of the 1963 convention explicitly designed to limit the incidence of multiple citizenship, adopted several Protocols that greatly softened the restrictive message. In 1997 the Council went further, promulgating a new European Convention on Nationality that readily accepts dual nationality, while attempting in modest but important ways to regulate nationality rules.7 Meanwhile, a growing literature welcomes the expansion of dual nationality as a means for fostering global peace, international trade, the spread of democratic values, and observance of human rights.8 B. Legal Tools Capable of Limiting Dual Nationality, and Their Limits The legal order was not powerless to avoid the growth of dual nationality, even in the face of increasing global commerce and migration. But the failure over recent Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, opened for signature Nov. 24, 1977, Europ. T.S. No. 95; Additional Protocol to the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, opened for signature Nov. 24, 1977, Europ. T.S. No. 96; Second Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, opened for signature Feb. 2, 1993, Europ. T.S. No. 149; European Convention on Nationality, opened for signature Nov. 6, 1997, Europ. T.S. No. 166 (entered into force Jan. 3, 2000) [hereinafter 1997 European Convention]. Thomas Franck, Clan and Superclan: Loyalty, Identity and Community in Law and Practice, 90 Am. J. Int'l L. 359, 379-80 (1996); Peter Schuck, Plural Citizenships, in Immigration and Citizenship in the 21st Century 149, 179 (Noah M.J. Pickus ed., 1998); Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 Emory L.J. 1411, 1480 (1997); Peter J. Spiro, Embracing Dual Nationality, Occasional Paper No. 1, Carnegie Endowment for Int'l Peace (Int'l Migration Policy Program ed. 1998); David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship 70-72 (1996); Yasemin Nuhoglu Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe 136-67 (1994). For a trenchant critique, particularly of Soysal's thesis, see Christian Joppke,
5
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decades to deploy available legal tools effectively toward that nominally shared end affords a subtle proof of how deeply rooted multiple citizenship has become. Those tools, and their relative ineffectiveness in the recent period, merit a brief review. 1. Dual nationality resulting from naturalization First, consider rules applied to naturalization applicants. As mentioned, legal regimes often formally require the loss or renunciation of all other nationalities at the time of naturalization - in many cases, under the laws of both the country of origin and the new country of residence. In the 1960s, the codes of the major democracies generally contained such a restriction. But over time most receiving countries applied these provisions with decreasing rigor. For example, many such codes contained exceptions to the renunciation requirement - e.g., when the country of initial nationality makes it difficult or unreasonably costly to secure release from its citizenship.9 Although most of these exception clauses were designed for narrow application, in recent decades they have been applied with increasing liberality, as happened in Germany and the Netherlands, to use two notable examples.10 Elsewhere, the requirement of renunciation came to be regarded, at least by key officials and many ostensible renouncers, as an empty verbal gesture. The United States, for example, retains its formal requirement that new citizens renounce all prior allegiances. The statutory provision, which traces to 1795 and has been little changed in this respect, incorporates words of renunciation into the oath that virtually all naturalizing American citizens must take. But the U.S. Department of State now treats this requirement as essentially unenforceable, sometimes even advising prospective new citizens not to worry about plans to continue exercising the rights and privileges of the original nationality. This stance is rationalized by a judgment that the renunciatory language in the U.S. naturalization oath would not be regarded by most other countries as effectively terminating their nationality. (That observation may be true, at least with regard to many countries of origin, but whether it should be given such weight in the administration of American law, when a statute expressly requires the contrary, remains open to question.) Other receiving countries have been more candid or explicit about their choice to embrace dual nationality on the part of naturalizing immigrants. They have eliminated older legal provisions that required proof of effective surrender or express renunciation as a condition precedent to naturalization. Thus they candidly accept dual nationality on the part of such new citizens, at least so long as the individual wishes to retain the old affiliation and is permitted to do so under the law of the Immigration Challenges the Nation-State, in Challenge to the Nation-State: Immigration in Western Europe and the United States 5, 24-29 (Christian Joppke ed., 1998). Cf. 1997 European Convention, art. 16 (disallowing required surrender of citizenship at time of naturalization "where such renunciation or loss is not possible or cannot reasonably be required"). See Rey Koslowski, European Migration Regimes: Emerging, Enlarging and Deteriorating, 24 J. Ethnic & Migration Stud. 735, 744 (1998); Heike Hagedorn, Administrative Systems and Dual Nationality, this volume. 6
Introduction: The Trend Toward Dual Nationality
country of origin. These ranks notably include countries with significant levels of immigration, such as Australia, Canada, and France.11 A similar - or perhaps even more striking - shift in attitude toward naturalization can be found in the legal codes of countries of emigration. Traditionally these countries tended to regard their nationals naturalizing elsewhere as prodigal sons and daughters who had abandoned their national family and who therefore should not be allowed to retain the original nationality. But by the 1990s many key emigration countries came to see real advantages in sustaining their ties with such wayward offspring. Allowing them to continue to use their old passports, for example, would facilitate and perhaps stimulate travel back and forth. Not only would such travel bring in foreign exchange, but also the ongoing and vital connections that could result might foster continued or increased remittances to family members, or entrepreneurial investments or charitable donations in the country of origin, thus boosting the national economy. Beyond this, emigration countries began to see advantages to doing more than just tolerating naturalization elsewhere; maybe they should actively encourage it. If so, many concluded that their own nationality surrender requirements had served as a disincentive impeding individual decisions to naturalize. Why encourage naturalization? First, if a higher number from among a nation's diaspora became citizens of the other country, perhaps its own governmental relations with that country would improve. In modest form, this hope was based on a judgment that government leaders in the other country would inevitably have to respond to an expanding group of voters who were naturally favorable to their original homeland's interests. In stronger form, some officials in emigration countries evidently calculated that their dual nationals might take explicit guidance from the first government when casting their ballots in the new country. (Whether naturalized emigrants actually fulfill either role, but especially the latter, is questionable.) A second reason for encouragement of naturalization on the part of emigration countries is reflected in Mexico's experience in the mid-1990s. Economic recession in California had triggered anti-immigrant backlash in the United States, which ultimately manifested itself in a restrictive state ballot measure known as Proposition 187 and harsh new federal legislation in 1996.12 Stung by criticism that it was doing The fountainhead 1947 Canadian Citizenship Act contained no renunciation requirement. Canada continued this policy in the comprehensive revision that resulted in the 1977 Citizenship Act (see § 5(1)), which also went further and eliminated a provision that had decreed loss of Canadian citizenship for its nationals who naturalized elsewhere. See Donald Galloway, The Dilemmas of Canadian Citizenship Law, in Aleinikoff & Klusmeyer, supra note 6, at 82, 86, 99. Australia in 1986 deleted the requirement that naturalizing citizens must renounce their former nationality. See Gianni Zappala and Stephen Castles, Citizenship and Immigration in Australia, in id. at 32, 46-47. For a description of French provisions, see Patrick Weil, La France et ses Etrangers 444 (1991); Patrick Weil, L'histoire de la nationalite francaise: une lecon pour l'Europe in Nationalite et Citoyennete en Europe 54, 62-65 (Patrick Weil & Randall Hansen eds., 1999). See Nicole E. Lucy, Mediation of Proposition 187: Creative Solution to an Old Problem? Or Quiet Death for Initiatives?, 1 Pepp. Disp. Resol. L.J. 123, 144-47 (2001). 7
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too little in that climate to protect the rights of the large numbers of Mexican citizens then living in the United States (an estimated 7 million), the Mexican government decided that promoting their naturalization in their country of residence might leave such persons' rights better protected. An historic reversal in Mexican policy therefore resulted, for Mexico had previously been deeply opposed to dual nationality. Permitting retention of Mexican nationality became a key step in a wider strategy meant to promote naturalization by its nationals living abroad.13 The shift by Latin American countries toward laws that permit their expatriates to retain nationality upon naturalization elsewhere is analyzed in Michael JonesCorrea's contribution to this volume.14 El Salvador made this change in 1983, the Dominican Republic in 1994, and Mexico in 1998, to pick three prominent examples. The chapters by Christian Rumpf and Nuray Eksi reflect the evolution in Turkey's practice, including its express acceptance of dual nationality in 1981.15 Several eastern and central European states made the same shift when they adopted new nationality laws after the political earthquakes of 1989-91.16 Hence naturalization increasingly leaves the naturalized member of the new polity as a dual national - a status tolerated or even encouraged by one or both of the states involved. Nonetheless, several key states have not made these changes, and in others the continuation of a renunciation requirement as a prerequisite to naturalization, even if often waived or treated as ineffective, sends a confused or unwelcoming signal to those considering such a step. 2. Dual nationality at birth With regard to the acquistion of nationality at birth, proponents of mono-nationality had other legal tools at their disposal. If all states were to allow transmission of citizenship only by descent (the jus sanguinis rule), as has occasionally been proposed,17 then dual nationality would clearly be reduced in the case of children born For general background on Mexico's wider concerns and initiatives, see Carlos Gonzalez Gutierrez, Fostering Identities: Mexico's Relations with its Diaspora, 86 J. Am. Hist. 545 (1999). For a description of the Mexican legal changes, see Jorge A. Vargas, Dual Nationality for Mexicans, 35 San Diego L. Rev. 823 (1998). The status of Mexican national that such a person retains after naturalizing elsewhere entails somewhat diminished rights in comparison to full Mexican citizenship, but assures that the person will not be treated as a foreigner by Mexico. The status of national, for example, exempts the individual from Mexican landownership restrictions that apply to foreign nationals. Moreover, such a national can easily regain full citizenship status by returning to reside in Mexico. Michael Jones-Correa, Under Two Flags: Dual Nationality in Latin America and its Consequences for Naturalization in the United States, this volume. Christian Rumpf, Citizenship and Multiple Citizenship in Turkish Law, this volume; Nuray Eksi, Comment: Consequences of Dual Nationality with regard to Residence, Employment, Ownership in Immovable Property, Military Service and Holding Political Office in Turkish Law, this volume. See Gary P. Freeman & Nedim Ogelman, Homeland Citizenship Policies and the Status of Third Country Nationals in the European Union, 24 J. Ethnic & Migration Stud. 769, 778-81 (1998); Andre Liebich, Plural Citizenship in Post-Communist States, 12 Int'l J. Refugee L. 97, 103-05 (2000). See Richard W. Flournoy, Jr., Dual Nationality and Election, 30 Yale L.J. 693, 706 (1921) (describing classic proposals). 8
Introduction: The Trend Toward Dual Nationality
outside their parents' country of nationality. Of course, uniform adoption of jus soli as the basis for transmission of citizenship would equally - or perhaps more effectively - reduce the incidence of dual nationality. But jus soli has been less widely accepted, and no country in the modern world uses it as the sole basis for attribution of citizenship. Had the policy against dual nationality really been as powerful as some of the early twentieth-century rhetoric suggested, one might have expected to see serious progress toward global uniformity along one of these tracks. It did not happen. Nations still clung strongly to the brand of acquisition rule that seemed best to fit their own national stories. The major countries of immigration therefore have remained steadfast in employing strong jus soli rules, while most countries of emigration have given primacy to jus sanguinis. With this mix of national rules, now that cheaper transportation and a more tightly connected global economy have produced more family migration, dual nationality inevitably proliferated. In any event, sole reliance on jus sanguinis as the rule for acquisition of citizenship at birth has proven increasingly undesirable under modern conditions. Under such a regime, second or third generations are born in the new country, but remain technically foreigners. Even some governments committed to the notion that their countries are not countries of immigration have come to regret or oppose a situation where such children lack the nationality of the only country whose life they have known. The most graphic recent example of the power of this trend may be found in Germany. Despite the nation's historic commitment to jus sanguinis and strong public opposition to dual nationality, in 1999 Germany amended its laws to provide citizenship jure soli to children born in its territory of foreign parents who had been resident for eight years.18 Insistence on transmission of nationality solely by way of jus sanguinis turns out to be a durably workable policy only if the state is rigorous in preventing immigration or in insisting that foreigners must leave after a temporary stay, even of several years' duration. Democratic states have found this rigor virtually impossible to achieve, owing either to political and economic realities or to legal restrictions found in constitution or treaty. When immigrant families settle in de facto for generations, states increasingly find that they need either jus soli or eased naturalization, or both, to facilitate integration and to avoid the creation of a permanently estranged caste of lifelong residents. Finally, even if uniform application of jus sanguinis could somehow have been achieved, conditions for the proliferation of dual nationality would still have expanded in today's conditions, because of increasing numbers of cross-national Nationality Act, §4(3) (Staatsangehorigkeitsgesetz, StAG), v. 22.7.1913 (RGB1. I S.583), as last amended by Act of 23 July 1999, v. 23.7.1999 (BGBl. I S.1618). These provisions took effect January 1, 2000. Section 29 of the same Act, also added in 1999, requires that a person who acquires German citizenship in this fashion choose between ages 18 and 23 which single nationality he or she wishes to keep. See Marianne Wiedemann, Comment: Development of Dual Nationality under German Law, this volume. 9
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marriages.19 Still, the legal cupboard was not bare for those states that might have wanted to avoid dual nationality even in these circumstances. In the early twentieth century, in fact, most states had an answer for this perceived problem. Their legal rules provided for the child to receive the citizenship only of the father - and they often also forced the wife to surrender her previous nationality and take on the citizenship of her husband, whatever her wishes. This patriarchal legal regime clearly minimized dual nationality and helped assure that families shared the same formal citizenship status, but at the cost of severe gender discrimination and the thwarting of the will of many married women. As a result, such laws became a target of the women's suffrage movement, and once women achieved the right to vote, the laws began to disappear rather promptly.20 By the latter third of the twentieth century, nearly all such discriminatory laws had been repealed in democratic states; hence children of mixed marriages in those countries regularly acquire the citizenship of both parents.21 Indeed, the movement toward gender equality has been a major contributor to the increasing incidence of dual nationality. Because it is inconceivable that modern democracies will return to the old discriminatory laws, and because cross-national marriages are sure to increase as a result of increasing travel, study, and work in foreign lands, this source of dual nationality will expand. States of course could still enforce eventual mono-nationality of those who acquire dual nationality at birth, through one final legal tool - a requirement that the dual national choose or, in the common phrase, "elect" a single nationality at the age of majority. Many states have enforced this requirement at times, but its use has been declining. Its support has been uneven at best, even in the heyday of the opposition to dual nationality. The Hague Convention of 1930 contained no election requirement, even though such a provision had been prominently included by the prestigious Harvard Research in an influential draft treaty prepared for the Hague meetings.22 Nonetheless some states still impose an election requirement on dual citizens when they reach the age of majority. And that the idea of a required election of citizenship still has some life is evidenced in its inclusion in Germany's 1999 liberalizing legislation. Those children who acquire German nationality jure soli are supposed to choose one nationality or the other at the age of majority. Because this policy will U.S. statistics are illustrative of this trend. From 1991 to 1997, the number of immigrant admissions of foreign spouses of U.S. citizens grew from 125,397 to 170,263, a 35 percent increase. 1997 INS Stat. Y.B. 32 (1999). Candice Lewis Bredbenner, A Nationality of Her Own: Women, Marriage and the Law of Citizenship (1998). International treaties have also targeted such discrimination. See Convention on the Nationality of Married Women, opened for signature Feb. 20, 1957, art. 1, 309 U.N.T.S. 65; Convention on the Elimination of All Forms of Discrimination against Women, opened for signature Dec. 18, 1979, art. 9, 1249 U.N.T.S 13. Code on the Law of Nationality (Harvard Research Project, Proposed Draft 1929), art. 12, reproduced in 23 Am. J. Int'l L. 13, 41 (Supp. 1929).
10
Introduction: The Trend Toward Dual Nationality
not face a full test for nearly two decades - the deadline by which the first such elections must take place - some observers have questioned whether Germany will have the political will to enforce such a choice at that time. The global tide of opinion, in Europe and on other continents, is flowing against such an imposition.
II. CONCERNS ABOUT DUAL NATIONALITY AND ALTERNATIVE MEANS OF ADDRESSING THEM The historical developments recounted above strongly suggest that dual nationality will continue to proliferate. Such a trend is to be welcomed in the world of the twenty-first century. Accepting dual nationality more accurately reflects the range of affiliations, ties, and loyalties that real human beings in an increasingly mobile and cosmopolitan world will actually hold. Acceptance may also help promote improvements in the integration of immigrants. And finally, dual nationality facilitates free movement on the part of people who have good reason to travel back and forth between countries with both of which they have genuinely close ties. Nonetheless, the account in Part I also reveals that the trend is not wholly beyond the capacity of nations to counteract. Should they do so? A brief review of the principal arguments against dual nationality suggests that the objections are largely unpersuasive under modern conditions or that their underlying concerns could be better addressed through more limited measures.23 A. Loyalty Opponents of dual nationality often treat national allegiance as inherently exclusive and indivisible. In this concept, dual nationality is like bigamy. It amounts to a kind of cheating on both polities. But these arguments savor of a nineteenth-century world order, when sovereignty was often vested in jealous monarchs, transnational interaction was limited, and the state system was characterized as a kind of international anarchy. Alliances among states were only temporary and opportunistic, so that dual allegiances appearing benign today might prove dangerous tomorrow. Modern democracies, in contrast, tolerate or encourage a wide range of competing loyalties and affiliations in civil society - to family, business, local community, religious denominations, sports teams, nongovernmental organizations promoting both political and nonpolitical causes, and so on - and do not treat such allegiances (even when they have an international dimension) as bigamous or as incompatible with a healthy level of loyalty to the nation-state. Dual nationals also typically feel strong ties to two nation-states without sensing that the commitment to one compromises or clashes with its loyalty to the other. For most, that judgment is objectively reasonable. Nations are increasingly bound I have examined these arguments in greater detail in David A. Martin, New Rules on Dual Nationality for a Democratizing Globe: Between Rejection and Embrace, 14 Geo. Immigr. L.J. 1 (1999). 11
D.A. Martin
by durably common, or at least harmonious, policies and objectives - a growing acceptance of democratic principles, of internationally recognized human rights, and of some form of a market economy. Moreover, wars between nation-states - once the ultimate test for a citizen's loyalties - are becoming increasingly rare, in part because of the development of international institutions that have brought us far from the jealous anarchy, and the oft-shifting alliances, of earlier centuries. Armed conflict in today's world is far more likely to occur within a nation-state. As more decisionmaking occurs at the transnational level, moreover, the very concept of exclusive political loyalty becomes more problematic. This is not to say that loyalty to the nation is unimportant. In fact, the contrary is true in an increasingly democratic globe. Some level of commitment to the common life of the country is indispensable to the sound functioning of democratic polities. National allegiance may help call forth the engagement in politics that democracies need, and a healthy measure of national loyalty helps dampen temptations for secession or violent opposition that could be felt whenever one faction is outvoted on issues about which people care deeply. Moreover, a developed sense of civic nationalism is often the strongest antidote to ethnic nationalism or other forms of separatism or secessionism. Therefore any real devaluation of citizenship in this sense, undercutting civic solidarity, would be a legitimate concern. But the needed level of loyalty or commitment to a democratic polity of which one is a member is certainly possible in the modern world even if one holds two or more nationalities. B. Voting Sometimes a functional objection to dual nationality focuses on an effect that the status could have on democratic politics. Dual nationals retain an option that most others within the nation's citizenry do not enjoy, for they have another country to which they can readily emigrate if conditions in the first deteriorate badly. The concern is that this exit option may foster less than responsible exercise of civic duties - in particular, that it might incline dual nationals toward the radical extremes of politics, for they know they need not necessarily live with the consequences of their votes. Although there is some force to this concern, it surely exaggerates the effect of dual nationality, and in any event it can be curbed through lesser measures than a ban on the status. As studies of guestworker programs have confirmed, a high percentage of migrants wind up remaining in place - often despite initially declared firm intentions to work for only a few years in the new country and then return home. This effect is doubtless stronger for those who have acquired dual nationality through a deliberate decision to naturalize than for those who have remained longterm residents without a change in citizenship status. And those who obtain dual nationality by birth in a country to which their parents have immigrated will encounter obvious barriers to moving abruptly to a society they have never known in person. The exit option is thus a far more daunting choice than economists' 12
Introduction: The Trend Toward Dual Nationality
models presume; inertia and familiarity tend to keep people rooted despite adversity. Because of this very human trait, much of the exit-option concern can be addressed by practices encouraging - or rules requiring - that people who hold multiple citizenship focus their political involvement on the country of residence. De facto, most people in those circumstances remain present long enough that they will have to live with the consequences of the vote's outcome. Similarly, concerns that dual nationals will be merely puppets of a distant government when they enter the voting booth are grossly exaggerated. Attempted commands along these lines from government leaders seem more likely to be resented than slavishly obeyed, particularly by voters resident in the distant country where the election is occurring. I am unaware of any concrete evidence showing successful direction of this sort by countries of emigration. But even if one could confidently locate such occurrences, a ban on dual nationality would hardly provide an effective barrier. Citizens are entitled to make up their own minds about what policies are best. That their judgments sometimes coincide with arguments, pleadings, or words framed as commands by foreign leaders does not prove the illegitimacy of the voter's choice, precisely because there exists no official version of the national interests of the state holding the vote. Surely we would not allow the current incumbents to define such interests, labeling as disloyal those whose votes reflect a different judgment about the best policies to follow. In fact, lifelong mono-nationals can develop an affinity for another country, whether inspired by work assignments or tourist visits there, that country's literature or cuisine, or adherence to its religion or secular philosophy. Even if such affection makes them receptive to arguments by the distant country's public figures or guides their choices in the voting booth, they are not thereby disqualified from voting. Perhaps it is true that persons who once held the nationality of another country are more susceptible to such influences. But if so, requiring formal loss of the earlier citizenship at the time of naturalization seems unlikely to negate them. If a country is insistent on preventing among potential voters such sympathies for policies favored by another country, then banning dual nationality is a paltry step. The government would have to be far more rigorous in preventing international travel, commerce, communication, study, and immigration than virtually any country is now willing to impose. In short, in the modern world cross-national contacts will almost certainly generate these sorts of influences and affinities. They may be reflected to some extent in individuals' voting decisions, whatever dual nationality doctrine the nation enforces. A further objection to dual nationality derives not from the expected outcomes of the voting by dual nationals, but from the very process of voting itself. Citizenship is often viewed as the quintessential marker or framework for equality in democratic societies. Whatever disparities exist in class, education, talent, or economic position, as a citizen each person counts equally. If dual nationals can vote in two separate polities, however, they have achieved a status that is at least symbolically superior 13
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to their fellow citizens - a status, moreover, that is simply not available to most of their fellow nationals (in either country). Supporters of dual nationality downplay the significance of this difference, both conceptually and practically.24 Conceptually, they insist, the proper measuring stick for equality calls only for counting within the specific political arena at issue: usually a single nation's politics. Dual nationality wins no privileges there; each citizen votes but once in that nation's elections, whatever voting rights he or she may enjoy in some distant location. Further, on a practical level, they point out that many obstacles exist to the simultaneous exercise of the franchise in two separate countries. Each country sets its own voting rules, and such regulatory schemes cover an extraordinarily wide range with regard to voting by nonresident citizens, as Peter Spiro quite helpfully summarizes in his chapter in this volume. Some nations ban nonresident voting altogether, even by mono-nationals resident outside the territory. At the opposite pole, some states provide special parliamentary seats for representatives of those who live abroad. For those states that do allow nonresident voting, with or without special forms of representation, further variety exists. Some allow absentee voting by mail, others make arrangements through their consulates, and still others allow such voting, but only if the voter returns to national territory for the election. Specific practices obviously can make any such distant franchise easier or more difficult to exercise. In virtually every situation, however, voting participation by those who live outside national territory has historically been low. In these circumstances, supporters contend, the practical impact of dual nationals' double voting is so insignificant that no true unfairness results. Although these observations carry some real force, they do not entirely dispel the objection to double voting. First, past experience does not guarantee future patterns. Candidates hold strong incentives to motivate their own supporters among the diaspora to vote, and one may expect increasing success along these lines as new technologies make both long-distance campaigning and voting easier. Second, the conceptual role of citizenship in reaffirming equality operates on a different plane. Practical obstacles to the exercise of double voting do not touch the objection where it is most completely operative, at the level of important symbolism, particularly if international cooperation and involvement continue to grow and the significance of single sovereigns continues to decline. As nations participate increasingly in regional and international bodies, those bodies take on some important characteristics of a single governance system. Those who can vote in two constituent units have twice the voice in such a system, compared to those who are mono-nationals. The relevant political arena is no longer simply the single nation-state. Reaffirming the linkage of equality and citizenship does not require a rigid rule against dual citizenship. A less far-reaching step would be for either of the states involved to impose rules forbidding double voting, ideally by allowing dual nationals to vote only in the country of residence. Such a measure would also counteract any 24
14
See Peter Spiro, Political Rights and Dual Nationality, this volume.
Introduction: The Trend Toward Dual Nationality
tendency toward extremism that might derive from a voter's belief that he or she will not live with the consequences. And it would complicate any country's efforts to sway the votes of their diasporic citizens, as compared to a rule allowing voting by nonresident dual nationals. Although rules against double voting as such present real practical difficulties of enforcement and are not currently employed to any significant degree, they may attract increasing attention in the future - not least as a way of easing the transition toward legal regimes that candidly accept dual nationality. Proponents of dual nationality should not underestimate the possible sensitivity of dual nationals' voting rights as an issue, even though the concern may be out of proportion to any reasonably foreseeable practical impacts.25 Incorporating a rule against double voting into a package of legislation repealing old bans on dual nationality may facilitate passage of the entire reform package. C. Diplomatic Protection Historically, complications in the exercise of diplomatic protection for a state's nationals residing or traveling abroad have been invoked against the acceptance or recognition of dual nationality. But this concern has often been misplaced, as it does not necessarily result from dual nationality, properly understood. Instead, many of the controversies derived from the refusal of the first country of nationality to recognize the surrender of its citizenship by one who had naturalized elsewhere often a product of the now abandoned doctrine of perpetual allegiance. When the individual in question truly does hold dual nationality, international law already provides rules to minimize conflict. Under one version of classic international law, a country was generally considered disentitled to exercise diplomatic protection against another country whose nationality the individual held. Any country of nationality, in other words, could apply its own laws of whatever character to its own citizens present in its territory, whether mono-nationals or multiple nationals, and was immune to diplomatic protest from other states. But the practice underlying this asserted rule was never uniform, and in any case this rule has been considerably eroded. As Kay Hailbronner's chapter in this volume documents, it is increasingly common to permit some forms of protection to be exercised by the country of dominant and effective nationality, even against the other country of nationality.26 Beyond this, diplomatic initiatives to protect the rights of individuals can now be based on international human rights doctrine, even without a nationality link. In a world order that increasingly, and commendably, accepts this broad understanding of universal human rights as a possible basis for interstate complaint or contention, difficulties of diplomatic protection cannot seriously be maintained as a significant objection to dual nationality. See Editorial, What Makes a Citizen?, Wash. Post, June 5, 1998, at A30. Kay Hailbronner, Rights and Duties of Dual Nationals: Changing Concepts and Attitudes, this volume. 15
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D. Changes in a Nation's Culture Opposition to dual nationality sometimes derives from concerns about unwanted changes to revered practices or beliefs, changes that are attributed to the growing ranks of newcomers living in a society. But dual nationality itself deserves little of the blame - if one chooses to employ that contestable term - for such a phenomenon. The very presence of significant populations from other countries is bound to have some cultural impact, whatever their citizenship status. Far more than dual citizenship, then, immigration is the truly responsible agent here. Although it would be possible, of course, for a nation to impose rigid acculturation or assimilation tests on those who would like to be naturalized, and for those tests to have some impact on the cultural incentives and practices of aspiring new citizens, the effectiveness of such measures depends heavily on the desirability of acquiring the new nationality, rather than on a required surrender of the old one. Moreover, if these acculturation tests are too demanding, they may be counterproductive, by discouraging applications for naturalization and thus hampering integrative efforts, heightening the sense of insularity felt by the immigrant population. In any case, modern communications, including satellite television transmissions, e-mail, and the internet, make it highly unlikely that cultures can be insulated even if migration is tightly controlled. For better or worse, cultural influences have globalized, and resistance to unwanted changes will have to be based primarily on the inherent strength and appeal of the challenged cultural practice. E. Military Service, Conscription, and Conflicts Inherent in High Office In the more anarchic international order of the nineteenth and early twentieth century, when alliances might shift abruptly and when classic state-to-state warfare was more often resorted to as an instrument of national power, suspicion about dual nationals among the members of a nation's military or policy-making elites was understandable. However much one could tolerate complex and layered loyalties in times of peace, war may demand an unquestioning obedience. The world order has changed considerably since then, however, particularly with the end of the Cold War. A widening circle of democratic nations has erected a web of enduring alliances based on genuinely shared values and interests, far more durable than monarchs' temporary judgments of advantage. The economies and even military forces of some nations are so closely linked as to make disentanglement nearly inconceivable. Even most nondemocratic nations participate in a United Nations system that has helped curb international war and often provides the forum for minimizing the violence, or the cross-border impact, of internal wars. Many nations have abolished conscription. Of those that still conscript, many have entered into bilateral or multilateral treaties that protect a dual national against multiple requirements of military service. These agreements usually give primacy to the claim of the state of residence, and provide that service in one state of nationality discharges the
16
Introduction: The Trend Toward Dual Nationality
obligation in the second state, at least short of emergency or general mobilization.27 Concern about conflicting military obligations no longer provides a convincing rationale for rigid rules absolutely banning dual citizenship. But the concern has not disappeared altogether. International wars do sometimes still occur, and nothing guarantees that the trend toward peaceful resolution of disputes is irreversible, even among currently friendly states. As a result it appears wholly appropriate for states to reserve for mono-nationals access to sensitive positions critical to national security. In times of sharp international conflict, furthermore, nations may be justified in imposing certain restrictions or choices on dual nationals who wish to serve in their militaries, including renunciation of citizenship in other parties to the conflict. In any event, at such times a clearly available mechanism for relinquishing one nationality would also be in the interest of the individuals affected, because those who hold dual nationality in two openly hostile nations run the risk that their actions in support of one would be regarded as treason by the other country.28 This possibility, plus the risk of conscription in a state wherein the person does not reside, illustrates a broader point: Dual nationality is not invariably in the interest of the persons holding such a status. Hence some mechanism for voluntary expatriation that the individual could invoke with only minimal qualifications, even in peacetime, should be retained or created. Nor are these general concerns limited to war-time or to ministries most directly concerned with security or diplomacy. Policies adopted in any ministry can sometimes turn out poorly, even disastrously. If the minister or other high officials responsible for those policies were dual nationals, the public might let its anger at the policy's effects spill over into cross-border hatreds or suspicions. As a way of avoiding any such risk, states may validly require mono-nationality of high policymaking officials serving in their governments. It would also be appropriate for the non-resident country involved to insist on the same result - after all, it risks being blamed if one of its nationals participates in another country's decisions that become unpopular. Thus the taking of high office in another polity may validly be seen as a basis for surrender or loss of citizenship. (The same concerns do not obtain with regard to ordinary civil-service positions.)
An extremely useful review of practices in this realm appears in Stephen H. Legomsky, Dual Nationality and Military Service: Strategy Number Two, this volume. Annex 23 to the 1907 Hague Convention Respecting the Laws and Customs of War, done Oct. 18, 1907, reproduced in James Brown Scott, The Hague Peace Conferences of 1899 and 1907, at 368, 389 (1909), forbids a state from compelling an individual, whether mono-national or dual national, to take up arms against a country of nationality. This principle is generally considered to have attained the status of customary international law. But individuals may still volunteer to participate in the wartime effort, and treason convictions in the other nation following the war have sometimes resulted. See Legomsky, supra. 17
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F. Conflict of Laws Regarding Civil Status Many states, particularly in the civil law tradition, base key private-law determinations, including marital status, adoption, other family obligations, and inheritance, on the nationality of the affected individual. When a person holds two or more nationalities, conflicting or irreconcilable rules may formally apply, as each state doggedly enforces its own provisions whenever it has formal jurisdiction over a particular dispute, or person, or property. Taxation regimes may also conflict, or at least compound the burdens of dual nationals, because some states assert the right to tax their citizens wherever resident. Other multiple regulatory claims may be made on the basis of citizenship, even when citizens act or reside outside the national territory. Although these confusions are sometimes invoked as a reason to oppose dual nationality, they fall far short of providing decisive arguments against the status. Other methods of deciding a dispute when potentially applicable laws conflict are readily available, primarily by giving primacy to the law of the state with which the dual national has his or her primary contacts - ordinarily the state of habitual residence. The Hailbronner and Oeter chapters in this volume explore such issues in greater detail.29
III. CONCLUSION An earlier era treated dual nationality as an evil or at most a temporary aberration beneath the notice of nuanced regulation. In modern conditions, dual nationality merits a more careful approach. It usually reflects the reality of complex loyalties and allegiances in an increasingly interconnected world, marked by a growing circle of democratic states with converging interests. The status of dual nationality should be explicitly accepted, where it reflects genuine links with both polities, and law should shift from suppressing the status toward managing its incidents, in order to minimize those few lingering points of legitimate concern.
Kay Hailbronner, Rights and Duties of Dual Nationals: Changing Concepts and Attitudes, this volume; Stefan Oeter, Effect of Nationality and Dual Nationality on Judicial Cooperation, including Treaty Regimes such as Extradition, this volume. 18
CHAPTER 2
RIGHTS AND DUTIES OF DUAL NATIONALS: CHANGING CONCEPTS AND ATTITUDES
Kay Hailbronner
I. THE CHANGING CONCEPT OF NATIONALITY Nationality still determines the scope of application of basic rights and obligations of states vis-a-vis other states and the international community, such as personal jurisdiction, application of treaties, and diplomatic protection. In domestic law, nationality is a fundamental requirement for the exercise of political rights and claims to protection and for correlate duties, such as military or civil service obligations, which may, however, vary according to national law. The International Court of Justice in the famous Nottebohm case has described nationality as a legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with that of any other state.1 The German Constitutional Court has described nationality as a legal status denoting membership in a political community: Nationality is the legal requirement for an equal status implying equal duties 1955 I.C.J., p. 4, 23. For a similar definition see the European Convention on Nationality (ECN), 6 November 1997, art. 2, Europ. T.S. No. 166; see also the Decision of the British-Mexican Claims Commission of 8 November 1929 in the case of Robert John Lynch v. United Mexican States: "A man's nationality is a continuing legal relationship between the sovereign State on the one hand and the citizen on the other." 5 R.I.A.A., p. 17, 18 (1929). David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 19-26 © 2003 Kluwer Law International. Printed in Great Britain.
K. Hailbronner
on the one hand, equal political rights on the other hand, the exercise of which is the exclusive source of legitimacy of power in a democracy.2 Nationality as a determining factor in international relations is closely connected with the concept of the sovereign state. With a changing perception of sovereignty as a result of a globalized interdependent world and international regimes, nationality has lost much of its delimiting function. Nationality cannot be considered any more as a sole and exclusive legal bond between an individual and a home country. Although there are as yet no genuine indications for a "post-national" or "transnational" nationality, states increasingly recognize that there may well be more than just one membership in a political community. The growing number of dual nationals and a changing attitude of states in dealing with multiple nationality indicate a change in traditional perceptions of nationality. The state, in addition, has ceased to be the only protector of an individual's rights. A variety of international conventions and treaties, on the regional as well as on the universal level, provide for an individual right to file a complaint before international bodies against the violation of human rights. The concept of diplomatic protection, based on the fiction of states asserting their own rights by protecting their nationals, has therefore sometimes been labeled as obsolete.3 Dugard in his first report on diplomatic protection4 has rightly criticized this assumption as exaggerated. The exercise of diplomatic protection by a state for its nationals is still an indispensable tool to enforce an individual's rights effectively, including his or her human rights against another state. Diplomatic protection not only may be more effective on the international level than a complaint before an international body, but also, in many cases, may be the only effective instrument to enforce an individual's human rights. Nationality has not lost its essential function as a legal requirement for a state to exercise diplomatic protection, although under exceptional circumstances diplomatic protection may be extended to non-nationals.5
II. THE CHANGING ATTITUDE OF STATES TOWARD DUAL NATIONALITY Customary international law leaves a wide margin of appreciation to states to determine who are their own nationals.6 It is true that the right of states to attribute nationalities is not unlimited, but states employ a wide range of different criteria. 83 Decisions of the German Constitutional Court, p. 37, 51. See Garcia Amador, State Responsibility: Some New Problems, 94 Academic de Droit International: Recueil des Cours, p. 421, 437 (1958 vol. II). First Report on Diplomatic Protection, UNGAOR, Int'l Law Comm'n, 52d Sess., U.N. Doc. A/CN.4/506 (2000). Ibid., p. 11, 57.
See ECN, op. cit. at art. 3 para. 1; Hague Convention on Certain Questions Relating to the Conflict of Nationalities, 12 April 1930, art. 1, 179 L.N.T.S., p. 89; The Tunis-Morocco Nationality Decrees 1923 P.C.I.J. (Ser. B) No. 4. 20
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The European Convention on Nationality of 1997 (ECN), as the most recent comprehensive treaty on nationality, lists the principles which can be considered as generally recognized criteria for attribution of nationality.7 In particular, the traditional distinction between ethno-cultural nationality laws based upon jus sanguinis and more politically oriented nationality laws based upon jus soli has been blurred by substantial changes related to the acquisition of nationality by immigrants in all major immigration countries. An increasing number of persons hold multiple nationalities, despite efforts to avoid or discourage this status. The principle whereby multiple nationalities are declared generally undesirable, which can be found in the European Convention of 1963 on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationals,8 has been abandoned by subsequent legal instruments, in particular the Second Protocol,9 which amends the 1963 Convention, and the 1997 ECN. The 1963 Convention, in any event, provided only for a limited category of persons. It covered the special case of voluntary acquisition of another nationality, and it obliged states in such cases to provide for the renunciation or loss of the previous nationality. The present state of public international law is correctly reflected in Art. 15 ECN. That article states that the Convention does not limit the right of a state to determine in its internal law whether its nationals who acquire or possess the nationality of another state will retain its nationality or lose it, nor whether the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality. Art. 15 ECN clearly marks a shift in the attitude of states toward multiple nationality, even though no general principle against or in favor of multiple nationality can be derived from the Convention. A major reason for the change of legislation has been the recognition of interests of immigrants to maintain connection with their country of origin, while attribution of the host state's nationality was also considered as an essential requirement for full integration there. On the other hand, there is no general consensus on whether multiple nationality is an adequate tool for promoting integration or whether it may instead obstruct integration by facilitating the formation of separate cultural and political interest groups, identifying with their country of origin rather than with the country of residence. Although there is no evidence that problems of failed integration are linked to the issue of multiple nationality, the conclusion of Kojanec is correct. He writes that the stance of international law in relation to the problem of multiple nationality is the result of historical, philosophical and social factors which provide the basis of the legislative approach in each state and determine its contours.10 ECN, op. cit. at art. 4. European Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationals, 6 May 1962, 635 U.N.T.S., p. 221. Second Protocol Amending the European Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationals, 2 Feb. 1993, Europ. T.S. No. 149. Giovanni Kojanec, in Council of Europe, 1st European Conference on Nationality, Strasbourg, 3 February 2000, Conf/Nat (99), Proceedings 1, p. 35. 21
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Nevertheless, there is a clear tendency for a more liberal toleration of multiple nationality. A large number of European states have changed their legislation in order to accept multiple nationality for certain categories of immigrants, thereby taking account of the connections of an immigrant with his or her country of origin. Even those countries maintaining the principle of avoidance of dual nationality, like Germany, have largely facilitated the maintenance of a previous nationality if renunciation meets serious obstacles or must be considered unreasonable for other reasons. Art. 14 ECN provides for multiple nationality in case of children having different nationalities acquired automatically at birth and in the case of automatic acquisition of another nationality due to marriage. In addition, under Art. 16 multiple nationality is accepted when renunciation or loss is not possible or cannot reasonably be expected.
III. DUAL NATIONALITY AND DIPLOMATIC PROTECTION An increasing number of multiple nationals may give rise to more international disputes resulting from conflicting rights and obligations. A traditional rule of customary international law, laid down in Art. 4 of the Hague Convention of 1930,11 provides that a state may not afford diplomatic protection to one of its nationals against the state whose nationality such a person also possesses. The rule, however, although maintained in some state practice, has been gradually diminished in importance due to a number of exceptions. One exception concerns the raising of claims in case of human rights violations, although the development of human rights has not made the institution of diplomatic protection of a state in favor of its nationals obsolete.12 Another exception relates to the application of the genuine and effective link theory for multiple nationals. Although the theory is doubtful if interpreted as a general requirement for acquisition of nationality or even diplomatic protection, it has gained acceptance in the context of multiple nationality. International tribunals have frequently accepted a claim of diplomatic protection in cases involving dual nationals if the nationality of the state raising the claim can be considered as the genuine and effective one in contrast to a more formal nationality of the other state.13 This rule may well be considered as an emerging principle in spite of the somewhat reluctant attitude of the ECN to provide for exceptions to the traditional rule.14 In more recent literature the customary recognition of the traditional rule is increasingly cast into doubt, to be replaced by the theory of dominant or effective Hague Convention on Certain Questions Relating to the Conflict of Nationalities, op. cit. at art. 4. See First Report on Diplomatic Protection, UNGAOR, Int'l Law Comm'n, 52d Sess., U.N. Doc. A/CN.4/506, p. 10 (2000). For further references see Hailbronner, in Volkerrecht (Graf Vitzthum, ed. Walter de Groyter 2d ed. 2001), p. 204; see also First Report on Diplomatic Protection, op. cit. at p. 42. See Hailbronner, op. cit. at p. 204, 205.
22
Rights and Duties of Dual Nationals
nationality.15 In the Third Restatement of the Law of 1987, the exercise of protection in favor of a dual national against his own state is held admissible if the nationality of the claimant state is dominant, i.e., if the individual has stronger links to that state, such as an extended residence or sojourn or ties of family or property in that state.16 As substantiation, the proponents of this theory call for their part on a string of decisions of international courts of arbitration and, above and beyond this, on the change in the structure of the international legal order. The related arbitral decisions in fact show that it is not possible to speak of unanimous legal conviction according to which protection against a state whose citizenship the national already possesses is completely excluded. In the case of Canevaro the Permanent Court of Arbitration had to rule on a claim by an Italian-Peruvian dual national concerning the failure to honor Peruvian state stocks.17 According to the view of the Court the plaintiff, Italian by descent but Peruvian by virtue of birth on Peruvian state territory, was restricted from complaint against Peru because he had effectively taken advantage of his Peruvian citizenship and had even become active in the political life of Peru. It was considered that in such circumstances it was not possible to speak of a dominant Italian nationality. A second precedent tending toward acceptance of the doctrine of effective nationality is the ruling of the Italian-American arbitral commission of 1955 in the case of Merge.18 Mrs. Merge, an American national, had married an Italian in 1933 and by operation of the law acquired Italian nationality. She had also subsequently made extensive use of this nationality, although she kept on renewing her American passport. In 1948 she asserted claims against Italy, based on a peace treaty, due to the loss of property in Italy resulting from acts of war. When the Italian government rejected all of Mrs. Merge's claims on grounds of her dual nationality, the American government asked for arbitration. The arbitration commission ruled in Italy's favor, holding that the United States was prevented from exercising diplomatic protection, Cf. Leigh, Nationality and Diplomatic Protection, 20 Int'l & Comp. L.Q., p. 453 (1971); Mahoney, The Standing of Dual Nationals Before the Iran-United States Claims Tribunal, 24 Va. J. Int'l L., p. 695 (1984); Rode, Dual Nationals and the Doctrine of Dominant Nationality, 53 Am. J. Int'l L., p. 139 (1955); Leurent, Problemes souleves par les demandes des double nationaux devant le Tribunal des differends irano-americains, 74 Revue critique de droit international prive, p. 273, 477 (1985). American Law Institute, Restatement of the Law of Foreign Relations Third, 1987, § 713 cmt. C; see also Reporter's Note no. 2, p. 222. The Case of Canevaro (Italy v. Peru), 11 R.I.A.A., p. 397 (Perm. Ct. Arb. 1912); cf. Benedek, Canevaro Claim Arbitration, 1 Encyclopedia of Public International Law, p. 527; de Bock, La Sentence Arbitrage de la Cour Permanente de la Haye Dans 1'Affaire Canevaro, 20 R.G.D.I.P., p. 317 (1913). Merge Case, 14 R.I.A.A., p. 236 (U.S. v. Italy 1955); see Klein, Merge Claim, 3 Encyclopedia of Public International Law, p. 353 (1981); Rode, Dual Nationals and the Doctrine of Dominant Nationality, 53 Am. J. Int'l L., p. 139 (1955).
23
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because the American nationality could not be regarded as predominant. The commission stated: The principle based on the equality of States, which excludes diplomatic protection in the case of dual nationality, must yield before the principle of effective nationality whenever such nationality is that of the claiming state. But it must not yield when such predominance is not proved because the first of these two principles is generally recognised and may constitute a criterion of practical application for the elimination of any possible uncertainty.19 The doctrine developed in the case of Merge has subsequently been applied in numerous other proceedings involving claims asserted by persons holding more than one nationality.20 The practical field of application of the new doctrine has certainly remained limited, however. As the wording of the Merge ruling clearly shows, the validity of the traditional rule was not generally placed in question. The criterion of effective nationality did not completely drive out the ground rule set down in Article 4 of the Hague Convention but merely supplemented it, in cases where one nationality must be seen as predominant. Only a purely formal nationality should be considered unable to hold against the dominant nationality. In order to judge this, the Merge commission wanted to include habitual place of residence as well as further social, economic, and political factors affecting living conditions. As shown in practice, relatively tight requirements were set on the conditions for finding a dominant nationality. The claims for protection in favor of dual nationals during that period failed without exception because the state against which the claim was asserted was able to refute the dominance of the other nationality. Both in the cases of Canevaro and of Merge the result would not have been any different had the traditional rule been strictly followed. A new era in the discussion of diplomatic protection for individuals holding more than one nationality began when the Iran-US Claims Tribunal was confronted with a string of claims filed by persons with both Iranian and American nationality. In the case of Esphahanian v. Bank of Tejarat,21 the plaintiff, a citizen of both countries, was born and raised in Iran and later naturalized in the United States. He at times lived and worked in Iran. His action sought payment of a dollar cheque issued by a nationalized Iranian bank. The competent division of the tribunal and later the plenum (in Case No. A-1822) rejected Iranian protests based on the dual nationality of the plaintiff and in so doing relied on the theory of dominant nationality. In justification, the court made reference to the criticism against the doctrine that would Merge Case, op. cit. at p. 247. Cf., e.g., Mazzonis Case, 14 R.I.A.A., p. 249 (1955). Esphahanian v. Bank of Tejarat, 2 Iran-U.S. Cl. Trib. Rep., p. 157 (1983). Decision in Case No. A-18 Concerning the Question of Jurisdiction Over Claims of Persons with Dual Nationality, 6 April 1984, 23 I.L.M., p. 489 (1984); cf. Mahoney, The Standing of Dual Nationals Before the Iran-United States Claims Tribunal, 24 Va. J. Int'l L., p. 695 (1984). 24
Rights and Duties of Dual Nationals
absolutely exclude a state's responsibility to another state for actions deemed to harm its own national, even in cases of dual nationality. According to the court, the traditional rule, on which Iran based its argument, is not sufficiently supported by arbitral court practice and is not representative of the development of modern international law. After fifty years, the court stated, Article 4 of the 1930 Hague Convention retains only limited value as proof of a sense of legal obligation. In the meantime the concept of the exercise of diplomatic protection would appear to have changed considerably. According to the court, both international practice and the literature written by "the most competent lawyers" reveal a clear trend toward modification of the traditional rule by the concept of dominant and effective nationality, a conclusion further confirmed by the ruling of the ICJ in the case of Nottebohm. This trend should be the less surprising, as it is consistent with the contemporaneous development of international law to accord legal protections to individuals, even against the State of which they are nationals.23 Moreover, the tribunal indicated that the traditional rule accords too much weight to the respective national concepts of citizenship. In the case of Iran, national law makes it practically impossible to lose or surrender nationality and bases nationality on purely objective links, such as descent. In this way, the international assertion of rightful claims of individuals was made more difficult, often impossible. The tribunal also pointed out that the dual nationality of US-Iranian nationals often resulted from Iranian nationality provisions that may be in breach of international human rights. The tribunal pointed in particular to the acquisition of Iranian nationality by the wives and children of Iranian men born in the United States.24 In the end, however, the tribunal did suggest that it might be necessary to distinguish different types of exercises of national protection, especially between assertions of claims before international courts and the exercise of protection through states in a more restricted sense. Because of the precise nature of the dispute before it, the court came down to a qualification of its fundamental statements on the validity of the traditional rule. In this case a judgment had to be reached only on claims filed directly by an individual before an international arbitration court, as authorized by a specific treaty. The court did not have to pass on the further question of the exercise of diplomatic protection by states on behalf of their own nationals where the rights of the plaintiff state itself are concerned.
IV. SOLVING CONFLICTS Multiple nationals in general are accorded the same rights and obligations as any other national holding only one nationality. Conflicting obligations or loyalties may Case No. A-18., op. cit. at p. 501. Ibid., p. 496.
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create difficulties if there are no special agreements providing for a mutual recognition of military service.25 Art. 21 ECN states that multiple nationals shall fulfill their military obligations in relation to one of the states parties only. Normally, that state party will be the state of habitual residence. The Convention, however, leaves it to the persons concerned to submit voluntarily to military obligations in relation to any other state of which they are also a national. Despite this decision by the Convention's drafters, it is doubtful whether a principle of free choice adequately reflects a proper balance of the interests of the individual and the society. Recognition of multiple nationality should not undermine legitimate integration concerns of states. Voluntary military service in a state other than the state of residence is hardly suitable to promote integration and may even be considered by internal legislation as a reason for loss of nationality. Growing numbers of multiple nationals may also create difficulties and conflicts in connection with the exercise of political rights by non-residents and with the potential interference of external interests in the political process. Political rights should be attached to the state of permanent residence. Permanent residence should also be the decisive factor in deciding conflict-of-laws issues. Such a rule would require a significant change of approach in those countries that now rely exclusively upon their own law whenever the individual holds the nationality of the forum state, even if he resides in the other country of nationality and has only limited connections with the forum state. Although multiple nationality in general does not imply problems of conflicting loyalty, there may be situations in which such conflicts, at least in the public perception, cannot be excluded. It is a legitimate concern of states to require that dual nationals surrender their other nationality before taking up high official functions in the government or in the public domain. Experience with multiple nationals does not indicate any need, however, to exclude those holding multiple nationalities from lower levels of the civil service. Because public international law is largely silent on the question of solving conflicts arising in the exercise of multiple nationalities, it is up to the states concerned to conclude special agreements on issues of conflict of laws, exercise of political rights, military and other obligations. A guiding principle should be that primary obligations of a dual national run to the state of residence. That state should also serve as the primary protector of the individual. Consequently, in the case of dual nationals, issues of civil status and conflict of laws should be resolved by reference to the laws of the country of habitual residence. In addition, dual nationals should focus their political activities in the state of residence and generally should vote only there. It would be advisable to devote some effort to the conclusion of international agreements which would facilitate management of multiple nationality and effectively deal with the issues related to the exercise of multiple rights and obligations. 25
26
See Legomsky, Dual Nationality and Military Service: Strategy Number Two, this volume.
CHAPTER 3
MULTIPLE NATIONALITY AND THE POSTNATIONAL TRANSFORMATION OF CITIZENSHIP
Linda Bosniak*
One of the pressing concerns in the vast scholarly literature on citizenship to emerge in the past decade is the effect of globalization on the institutions and practices of citizenship. Scholars have asked, among other questions: What is the nature of the relationship between citizenship and the nation-state? Is it an exclusive relationship? A necessary one? Where exactly is citizenship located, and where ought it to be? And how are our understandings and practices of citizenship being transformed in the current period?1 Many real world developments have inspired this line of scholarly inquiry. None is more significant, however, than the dramatic rise in the incidence of dual or multiple citizenships around the world.2 The proliferation of plural citizenships, or A substantially similar version of this chapter has been published in 42 Va. J. Int'l L. 979 (2002). The idea of globalization has been criticized by some commentators as overbroad and insufficiently defined. It is not my purpose in this paper to engage in this debate directly. At the very least, the term is usually employed to include reference to an increase and intensification in cross-border flows of information, capital, technology, and people, facilitated through technological developments in transportation and telecommunication; it refers, as well, to a convergence and increased cooperation in legal norms across states. See generally David Held et al, Global Transformations: Politics, Economics and Culture (1999). As for what impact globalization should be understood to have on national states, scholars vary in their assessments. According to Jurgen Habermas, globalization "signifies transgression, the removal of boundaries and thus, a danger for the nation state which almost neurotically watches its borders." Jurgen Habermas, The European Nation-State: Its Achievements and Its Limitations: On the Past and Future of Sovereignty and Citizenship, 9 Ratio Juris (No. 2) 125, 135 (1996). Other commentators argue that claims of the decline of the nation-state in the face of globalization are overstated. See, e.g., Paul Hirst & Grahame Thomson, Globalization: A Necessary Myth, in The Global Transformations Reader: An Introduction To the Globalization Debate (David Held & Anthony McGrew eds., 2000). David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 27-48 © 2003 Kluwer Law International. Printed in Great Britain.
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plural nationalities,3 implicates fundamental questions about the nature and location of citizenship and about the character and future of the nation-state system as well. It is thus no wonder that the subject of plural nationality has recently drawn widespread attention across a range of academic disciplines. The subject has given rise to several lines of scholarly inquiry. Analysts have devoted substantial attention to characterizing, among other things, the various empirical preconditions - legal, social, and technological - for the worldwide growth in dual nationality. They have also sought to master the maddeningly complex systems of technical nationality rules prevailing within and among different countries, and they have worked to develop rational and normatively defensible policy on multiple nationality at the state and inter-state levels. Beyond these efforts, however, commentators across a variety of disciplines have also sought to approach the subject of plural nationality in what can only be described as more hermeneutical terms. These commentators treat the rise in the rates of multiple nationality as a significant social development which needs to be interpreted and assessed. They are concerned with asking what the pluralization of nationality means - or what we should understand it to mean - for contemporary political and cultural life, both within and across nation-states. In this paper, I approach the subject of plural nationality in this broader, interpretive sense. My focus, in particular, is on one specific meaning commonly attributed to multiple nationality in the scholarly literature: the claim that rising rates of multiple nationality reflect citizenship's increasingly postnational character. This is a claim that dual nationality is both a product of, and in turn has helped to produce, the current postnational moment in contemporary political and social life. This is not a uniform claim, nor is it always systematically developed. In fact, it As many commentators have noted, more people than ever hold citizenship in more than one nationthe result, in part, of the availability of dramatically improved transportation and communications technologies, in conjunction with the recent liberalization of different national rules on naturalization, expatriation, and assignment of citizenship at birth, which together make multiple citizenships possible and often routine. For extremely useful sources which discuss the rise of dual nationality in detail, see, e.g., Peter H. Schuck, Plural Citizenships, in Immigration and Citizenship in the Twenty-First Century 149 (Noah M. J. Pickus ed., 1998); David A. Martin, New Rules on Dual Nationality for a Democratizing Globe: Between Rejection and Embrace, 14 Geo. Immigr. L.J., 1 (1999); Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 Emory L.J. 1411 (1997). A note on terminology: In much discussion on the subject of plural, or multiple, citizenship, the terms citizenship and nationality are used interchangeably. In this essay, I will use the term nationality to focus on formal legal membership status in a nation-state. However, I consider nationality to be a form of citizenship. As I will argue in the second part of the paper, citizenship is the broader category. It must be noted, however, that in some national legal contexts, the terms nationality and citizenship carry entirely distinct meanings. In Mexico, for example, "[n] ationality - a broader concept than citizenship - connotes belonging to the state; it entitles one to basic membership rights short of political rights. Citizenship is accompanied by full political rights." T. Alexander Aleinikoff, Between Principles and Politics: The Direction of U.S. Citizenship Policy 30, n.51 (1990). Note also that I refer to "plural" or "multiple" nationality rather than "dual nationality" partly in recognition of the fact that individuals may, and increasingly do, attain multiple national memberships.
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Multiple Nationality and the Postnational Transformation
is advanced not only in the literature specifically devoted to citizenship, but also more incidentally in scholarship concerned with other themes. Nevertheless, the idea that multiple nationality is an expression of citizenship's new, postnational mode has become somewhat commonplace in recent discussions on the current condition of citizenship. My purpose in the paper is to reflect upon and assess this particular interpretation of plural nationality. I begin by examining the idea of postnationality itself. I contend that "postnationality" in this context is meant to convey at least two separate, though sometimes overlapping, claims: one concerning a perceived decline of state sovereignty; the other concerning an asserted rise of the transnational subject. I next examine each of these claims in relation to the question of multiple nationality and determine that, while the rise in multiple nationality is rightly regarded as linked with these developments, it only partially and sometimes inadequately illustrates them. I conclude by suggesting that the claim that citizenship is becoming increasingly postnational has more persuasive force to the extent that we move beyond a discussion of citizenship-as-nationality and consider the condition of citizenship in its several other dimensions.
I. PLURAL NATIONALITY AND POSTNATIONALITY Many academic commentators have attributed epochal significance to the rise of multiple nationality. Growing rates of dual and multiple nationality are understood to represent, and to portend, a new historical moment in which citizenship is being recast in postnational form. There are many examples of such views. Kim Rubenstein writes that traditional notions of "citizenship, in its traditional meaning of participation in and membership of the nation-state, [are being] shattered by globalization," as "multicitizenship" becomes commonplace in a "borderless world."4 Yasemin Soysal maintains that "dual citizenship, which .violates the traditional notions of loyalty to a single state," is one indicator of the emergence of "postnational" "forms of citizenship."5 Miriam Feldblum asserts that "[d]ual nationality breaks with the logic and practice of national state citizenship." It is, she contends, an "expansionist nationality reform [] point [ing] in the direction of post-national membership."6 Peter Spiro describes the rise of and increasing tolerance for dual nationality as reflecting "the transformed nature of citizenship in a postnational world, a world in which national affiliations no longer clearly trump other associational attachments and in which the nation-state can no longer afford to extract an exclusive relationship from Kim Rubenstein, Citizenship in a Borderless World, in Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry 183 (Anghie & Sturgess eds., 1998). Yasemin Nuhoglu Soysal, Changing Parameters of Citizenship and Claims-Making: Organized Islam in European Public Spheres, 26 Theory and Society 509, 512 (1997). Miriam Feldblum, Reconfiguring Citizenship in Western Europe, in Challenge to the Nation-State: Immigration in Western Europe and the United States 231, 236-37 (Christian Joppke ed., 1998). 29
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its membership."7 David Jacobson describes the recent legalization of multiple nationality in many traditional immigrant sending-states as a key sign of "the disaggregation of the nation-state," whereby "[t]he political, communal and territorial components of the nation-state, once thought so intertwined as to be unremarkable, are becoming unbundled."8 And Thomas Franck maintains that the growing tolerance for multiple nationality among states demonstrates the erosion of "the statist 'we,'" based on the "two hundred year virtual monopoly of state-centered nationalism," in favor of "a global system characterized by overlapping communities and multivariegated personal loyalties yielding more complex personal identities."9 These commentators cannot be regarded as comprising any sort of monolithic group. While they are all concerned with the contemporary transformations in citizenship in a moment of increasing globalization, they differ among themselves along a variety of dimensions. These analysts approach the subject of dual nationality from distinct disciplinary and methodological perspectives. Some write in law, others in political science or sociology. Some are theoretical in approach, others more empirically oriented. Some are specifically concerned with citizenship, others with globalization more broadly. In addition, their normative assessments of the developments they describe vary widely. Thomas Franck and Peter Spiro are openly celebratory, for example, while David Jacobson casts a far more dubious eye. Nevertheless, these commentators maintain a common vision to this extent: They regard the current socio-political moment as increasingly postnational in character, and they consider the rise of plural nationality as an integral part of that process. A. Defining "Postnationality" This approach to the subject of dual or multiple nationality raises several analytical and empirical questions. First among them is the matter of what, precisely, is meant by the idea of postnationality. This is a term that is increasingly deployed in the academy,10 but more often than not it is used casually (if not voguishly) and without any accompanying definition. Broadly, scholars seem to be referring to a set of social and political and cultural processes which, in Yasemin Soysal's terms, serve to
Spiro, supra note 2, at 1416. David Jacobson, New Border Customs: Migration and the Changing Role of the State, 3 UCLA J. Int'l L. & Foreign Aff. 443, 444 (1998-99). Thomas M. Franck, Community Based on Autonomy, 36 Colum. J. Transnat'l L. 41, 42, 63-64 (1997). E.g., Arjun Appadurai, Modernity At Large: Cultural Dimensions of Globalization 139-77 (1996); Yasemin Nuhoglu Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (1994). One commentator notes that postnationalism is only one "[a]mong the many 'posts' of our present post-postmodern academic age." Tom Englehardt, Talking 'Bout A Revolution, The Nation, Dec. 13, 1999, at 13.
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Multiple Nationality and the Postnational
Transformation
"undermine 'the national order of things.'"11 But undermine what, exactly, in what manner and to what extent? Of particular concern, the postnationality literature is often ambiguous about the significance of the term's prefix. It is often not clear whether analysts, in affixing "post-," intend to convey a set of social and political conditions that arise "after" the demise of nationality or nationalism, or whether the term is meant simply to convey a transformation in the character and significance of nation-states and their associated institutions without presupposing such a demise. Generally speaking, most scholars who employ the term seem to be referring not so much to any alleged dissolution of the nation-state system as to a moment in time when national forms of public life have simply lost their assumed authority and predominance.12 But often this is not spelled out. Still, and notwithstanding this imprecision, a reading of the literature suggests that the postnationality idea is constituted by two principal empirical claims, both common in the broader literature on globalization, which are distinct though overlapping. The first concerns a perceived decline of state sovereignty in the current period; the second concerns an asserted rise of the transnational subject. The notion that nation-states have suffered a drastic diminution in sovereignty under conditions of globalization has been a common premise in much social science and related literatures in the past two decades. The accounts vary widely, but they commonly include reference to processes of economic globalization, said to have undermined states' authority to control production, investment, and trade,13 and to have constrained their ability to insulate themselves from the effects of environmental degradation, infectious disease and other social disorders.14 Linked to this are accounts of accelerated transnational migration of peoples,15 as well as cultural and informational flows made possible by revolutions in transportation and communications technologies, revolutions of a character which exceed nation-states' capacities Yasemin Nuhoglu Soysal, Citizenship and Identity: Living in Diasporas in Post-War Europe? 23, Ethnic & Racial Stud. 3 (2000) (quoting Liisa Malkki, Purity and Exile: Violence, Memory, and National Cosmology Among Hutu Refugees in Tanzania 2 (1995)). James Rosenau, who coined the concept of "postinternational politics," describes postinternationality similarly - as a concept that tentatively conveys a process of gradual weakening, but not the total replacement, of the previously hegemonic regime: Postinternational politics, he writes, "clearly suggests the decline of long-standing patterns without at the same time indicating where the changes may be leading. It suggests flux and transition ... It reminds us that 'international' matters may no longer be the dominant dimension of global life." James Rosenau, Turbulence in World Politics 6 (1990). Note, by contrast, that Arjun Appadurai, an influential exponent of the term "postnationalism," maintains that "the nation-state, as a complex modern political form, is on its last legs." See Appadurai, supra note 10, at 19. E.g., Saskia Sassen, Losing Control (1996). See Alexander B. Murphy, The Sovereign State as Political-Territorial Ideal, in State Sovereignty as Social Construct 81, 108 (Thomas J. Biersteker & Cynthia Weber eds., 1996). E.g., Stephen Castles & Mark Miller, The Age of Migration 8-9 (1998) (describing what they call the globalization and acceleration of migration). 31
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to contain or otherwise control.16 Many analysts have likewise stressed the emergence in recent decades of international legal regimes and institutions, particularly those associated with the protection of human rights, which serve to constrain state prerogatives in relation to their own nationals in significant ways.17 Finally, commentators increasingly cite the establishment of the European Union as evidence of the declining sovereignty of the constituent European national states.18 In light of these and other developments, some argue, state sovereignty has today become "an outdated concept."19 In many accounts of sovereignty's decline, the concept of sovereignty is itself never precisely defined. This is not surprising: sovereignty is one of those "essentially contested" political concepts that is notoriously difficult to pin down.20 At the most general level, sovereignty has been described as entailing "supreme legitimate authority within a territory."21 The concept is commonly said by political theorists to possess both internal and external dimensions. In its internal mode, sovereignty entails "the idea that there is a final and absolute political authority in the political community" and that "no final and absolute authority exists elsewhere,"22 while in its external mode, sovereignty is said to entail "a political entity's externally recognized right to exercise final authority over its affairs."23 Conceptions of state sovereignty24 - grounded in both internal and external understandings - have been further See, e.g., Appadurai, supra note 10. As Herman van Gunsteren has written, "It is now clear to everyone that governments cannot control national societies. The free movements of people, goods and money across frontiers are too numerous and too massive." Herman van Gunsteren, A Theory of Citizenship: Organizing Plurality In Contemporary Democracies 14-15 (1998). E.g., Murphy, supra note 14, at 108 ("[D]evelopments in the human rights arena have raised questions about the viability of the post-World War II state system as it is traditionally understood.") See also Richard Falk, Human Rights and State Sovereignty (1981). E.g., Jacqueline Bhabha, Belonging In Europe: Citizenship and Post-national Rights, 11 Int'l Soc. Sci. J. 11 (1999) ("It is incontrovertible that establishment of the European Communities and more recently of the European Union has impinged on the autonomy of individual member states."); Daniel Philpott, Sovereignty: An Introduction and Brief History, 48 J. Int'l Aff. 353-68, 367 (1995) (describing "the creation and expansion of the European Community, now the European Union," as "the first transition since Westphalia" to challenge state sovereignty fundamentally). Van Gunsteren, supra note 16, at 4. See James Connolly, The Terms of Political Discourse (1974, 1983); Thomas J. Biersteker & Cynthia Weber, The Social Construction of State Sovereignty, in State Sovereignty as Social Construct, supra note 14, at 2 (describing sovereignty as "an ambiguous concept [that] tends to raise more questions about international relations than it answers"). See also Jens Bartelson, Genealogy of Sovereignty 12-13 (1995) (arguing that "[d]espite the wide agreement about its central place in our political vocabulary and understanding, the concept has eluded almost every attempt of rigorous definition and conceptual analysis"). Philpott, supra note 18, at 357. F.H. Hinsley, Sovereignty 26 (1986). See also Harold J. Laski, Studies in Law and Politics 237 (1932) ("By sovereignty is meant the legal competence to issue orders without a need to refer to a higher authority."). State Sovereignty as Social Construct, supra note 14, at 2. See also Anthony Carty, Sovereignty In International Law: A Concept of Eternal Return, in Reclaiming Sovereignty 101 (Laura Brace & John Hoffman, eds., 1997) ("For the international lawyer, ... sovereignty equals independence and consists
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Transformation
refined in different contexts to include a variety of commonly held political tenets.25 Among them, one finds the idea that a national collectivity has the right to define itself by determining who will join its membership;26 the idea that sovereign states must possess territorial integrity through enforcement of territorial boundaries;27 the idea that states may claim the exclusive allegiance of their members as a necessary feature of the social contract between ruler and ruled;28 and the idea that states may not intervene in the internal affairs of another state. Each of these core dimensions of state sovereignty is claimed to have been seriously undermined by the globalizing trends of recent decades. Many theorists of sovereignty have argued that state sovereignty has become, to some degree, a fiction in the face of various globalizing forces. One speaks of the gaps or disjunctures that currently exist "between the formal domain of political authority" and the actual, increasingly limited scope and effectiveness of state power in various political, economic, and social domains.29 Others emphasize not merely the de facto, but also the formal, decline of the sovereignty principle in the face of the ascending authority of supranational norms and institutions.30 As one theorist argues, the various components of state sovereignty are being "relocated" to other levels of governance.31 Yet the "decline of sovereignty" narrative is not an uncontested one. Some analysts have cautioned, for example, that the decline of sovereignty story tends, at once, both to overstate the degree of control states exercised in the economy in earlier eras and to underestimate the degree to which states have been engaged in producing, of the bundle of competences [sic] which have not already been transferred through the exercise of independent consent to an international legal order."). Note that although the idea of sovereignty is conventionally considered to be an attribute of states necessarily, scholars are increasingly arguing that sovereignty need not be so understood. As the authors of a recent volume of essays on the concept of sovereignty write, "Some take it for granted that sovereignty is a concept which only applies to the state. But there is a growing body of literature ... which challenges the sovereignty-state equation," Laura Brace & John Hoffman, Introduction: Reclaiming Sovereignty, in Reclaiming Sovereignty, supra note 23, at 1. Among other things, scholars have extended the concept of sovereignty to apply to the individual. See, e.g., Jean Bethke Elshtain, Sovereign God, Sovereign State, Sovereign Self, 66 Notre Dame L. Rev. 1355 (1991). All of these aspects of sovereignty generally relate to what Biersteker and Weber describe as "the basic components of state sovereignty": "territory, authority and national identity." State Sovereignty as Social Construct, supra note 14, at 14-15. See Seyla Benhabib, Political Membership in the Global Era, 66 Soc. Research 709, 710 (1999). E.g., Sassen, supra note 13, at 3 ("[R]ule in the modern world flows from the absolute sovereignty of the state over its national territory."). See Ruth Donner, The Regulation of Nationality in International Law 18-19, 25 (2d ed. 1992) (noting that, under the classical theory of state sovereignty, "it was permissible for an individual to have one, and only one, nationality"). David Held, Political Theory and the Modern State 229 (1989). See also Hinsley, supra note 22 (speaking of a growing gap between "sovereign authority and the effectiveness of rule"), cited in State Sovereignty as Social Construct, supra note 14, at 8-9. See generally Falk, supra note 17. Saskia Sassen, Globalization and Its Discontents 92 (1998). 33
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managing, and responding to globalization.32 To the extent that postnationality is defined by reference to an asserted decline of state sovereignty, then, the idea of the postnational is itself subject to some empirical contention. The other principal claim associated with the idea of postnationality is the asserted rise of the transnational subject. For well over a decade, the rise of transnationality has been the object of study by scholars in a variety of disciplines, particularly sociology and anthropology, though the concept has been picked up in the humanities as well. The focus in this literature is less on globalization's effects on state power and the inter-state system than on its implications for various nonstate actors.33 As one analyst has written, transnationalism is usually meant to "refer to sustained ties of persons, networks and organizations across the borders across multiple nationstates. ..."34 Initially, the literature on transnationality addressed the cross-border activities of corporate actors.35 More recently, the transnationalism literature has shifted focus to what some commentators have called "[t]ransnationalism [f]rom [b]elow,"36 with particular attention to the way in which modern transportation and communications technologies37 have dramatically increased both the incidence of cross-national migration - often labor migration - and the possibilities for transnational migrants to maintain meaningful ties to their countries of origin. Scholarship in this genre examines the way in which people increasingly create and maintain lives across national spaces, between institutional worlds and worlds of meaning. As the authors of one influential work on the subject describe it, transnationalism involves "the See, e.g., Michael Mann, Nation-States in Europe and Other Continents: Diversifying, Developing, Not Dying, 122 Daedalus 115, 138 (1993) ("Capitalist and cultural transnationalism do not merely undermine states. The increasing density of global society gives states new geopolitical roles."); Sassen, supra note 13, at 29 ("The strategic spaces where many global processes take place is often national... The condition of the nation-state, in my view, cannot be reduced to one of declining significance... The state itself has been a key agent in the implementation of global processes."). Although most analysts concerned with transnationalism are committed to decentering the state in their analyses, transnationalists' focus on non-state actors and formations obviously has a great deal of relevance to the debate over the condition of state sovereignty. For example, Biersteker and Weber write: [t]he communicative actions of human rights groups have created new transnational communities that do not respect traditional boundaries between the domestic and the international. This raises the possibility that the emergence of a "global civil society" might have begun to construct an alternative location for authority in the area of human rights, an authority that resides outside of the state. State Sovereignty as Social Construct, supra note 14, at 10. Thomas Faist, Transnationalization in International Migration: Implications for the Study of Citizenship and Culture, 23 Ethnic & Racial Stud. 189 (2000). E.g., Saskia Sassen, The Global City: New York, London, Tokyo (1993). Transnationalism from Below (Michael Peter Smith & Luis Eduardo Guarnizo eds., 1998). Such technology has been described by some observers as "space and time-compressing technologies. ..." Alejandro Portes et al., The Study of Transnationalism: Pitfalls and Promises of an Emergent Research Field, 22 Ethnic & Racial Stud. 217, 224 (1999). 34
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processes by which immigrants forge and sustain multi-stranded social relations that link together their societies of origin and settlement. We call these processes transnationalism to emphasize that many immigrants today build social fields that cross geographic, cultural, and political borders."38 Many analysts of transnationalism focus on the economic strategies of "transmigrants," in both old and new countries, particularly their reliance upon and nurturing of cross-border solidaristic networks to assist in employment, living arrangements, credit and the construction of business enterprises.39 Other commentators are more concerned with the migrants' distinctive political identities and experiences. There is today a growing body of literature addressing the manner in which transnational migrants maintain and continue to construct their (original) national identities from their locations abroad. Such migrants have been described as engaging in "deterritorialized nation-building," or "long-distance nationalism,"40 to use the striking phrases of some analysts. In the course of characterizing these various developments, many scholars have shown a particular concern with the ways in which transnationality-in-fact leads to transnationality in subjective experience. One prominent analyst has written that transnationalism entails "the gradual growth of communities that sit astride political borders and that, in a very real sense, are 'neither here nor there.'"41 It is the experience of being "neither here nor there" - or, stated more affirmatively, being located in a "third space" beyond the parameters of any individual nation-state42 that shapes the sense of postnational identity to which many commentators refer. Scholars have developed concepts that seek to capture this experience - including Linda G. Basch et al, Nations Unbound: Transnational Projects, Post-Colonial Predicaments and De-territorialized Nation-States 7 (1994). There is a vast literature on transnationalism and migration. For a cross-disciplinary selection, see, e.g., special issue on Transnationalism in 22 Ethnic & Racial Stud. 217-477 (1999); Dennis Conway, Are There New Complexities in Global Migration Systems of Consequence for the United States Nation-State, 2 Ind. J. Global Legal. Stud. 31, 36 (1994) ("Transnational systems are evolving, collapsing space-time differences and deterritorializing nationstates while contributing to the formation of new communities, new alliances, and new multicultural exchanges."); Michel Laguerre, Diasporic Citizenship: Haitian Americans in Transnational America 184 (1998); Roger Rouse, Making Sense of Settlement: Class Transformation Cultural Struggle and Transnationalism Among Mexican Migrants in the United States, Ann. N.Y. Acad. Sci. 25 (1992); Robert C. Smith, Transnational Localities: Community, Technology, and the Politics of Membership Within the Context of Mexican and US Migration, Smith & Guarnizo, supra note 36, at 196. Alejandro Portes, Transnational Communities: Their Emergence and Significance in the Contemporary World-System, in Latin America in the World-Economy 151, 154 (Robert Patricio Korzeniewicz & William C. Smith eds., 1996). Long Distance Nationalism: World Capitalism and the Rise of Identity Politics, (Conference on Nation, National Identity, Nationalism, Working Paper No. 51, 1992). Portes, supra note 39, at 156. See, e.g., Maria de los Angeles Torres, Transnational Political and Cultural Identities: Crossing Theoretical Borders, in Borderless Borders: U.S. Latinos, Latin Americans and the Paradox of Interdependence 169-82, 181 (Frank Bonilla et al eds., 1998); Homi Bhabba, The Third Space, in Identity: Community, Culture, Difference 207-22 (Jonathan Rutherford ed., 1990). 35
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hybrid identity, transnational identity, deterritorialized identity, and liminality - to express this phenomenon.43 The psychic phenomenology of "diaspora" is closely linked in the literature with this sense of subjective multiple location and/or rootlessness as well.44 Although the experience of transnational migrants constitutes the heart of the recent transnationalism literature, there are two other central themes in the work. The first concerns the proliferation of cross-border political activities and movements at the grass-roots level, described in one prominent work as "transnational advocacy networks."45 These networks are said to represent a critical part of the burgeoning transnational arena of "global civil society." In this account, transnational actors are not grounded in any particular nation states but instead exist in a social and political space that transcends nationality altogether.46 The second strand returns our attention to the state. Some analysts have argued that transnationalism is a strategy adopted not merely by individuals, but also by governments, party officials and community leaders within the nation-states from which international migrants originated as a mode of response to that emigration. The outreach and promotional activities of sending country consular officials and representatives of political parties have been described as examples of specifically
E.g., Torres, supra note 42, at 181; David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship 127 (1996) ("deterritorialized identities"); Michael Jones-Correa, Between Two Nations: The Political Predicament of Latinos in New York City (1998) (referring to liminality and multiple identities); Robin Cohen, Diasporas and the Nation-State: From Victims to Challengers, 72 Int'l Aff. 507, 517(1996). See Khachig Tololyan, The Nation-State and Its Others: In Lieu of a Preface, 1 Diaspora: J. Transnat'l Stud. 4-5 (1991) ("[The term diaspora] that once described Jewish, Greek and Armenian dispersion now shares meanings with a larger semantic domain that includes words like immigrant, expatriate, refugee, guest-worker, exile community, overseas community, ethnic community. This is the vocabulary of transnationalism."). See also Laguerre, supra note 38, at 8 ("By diaspora, we refer to individual immigrants or communities who live outside the legal or recognized boundaries of the state or the homeland, but inside the reterritorialized space of the dispersed nation; "); Torres, supra note 42; Appadurai, supra note 10. Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998). For a comprehensive study of this phenomenon, see generally id. (describing such movements as "transnational advocacy networks"). See also Andre Drainville, Left Internationalism and the Politics of Resistance in the New World Order, in A New World Order: Global Transformation in the Late Twentieth Century (M.P. Smith J. Borocz eds., 1995); Warren Magnusson, The Search for Political Space (1996); Jeremy Brecher & Tim Costello, Global Village or Global Pillage 81-118 (1994); Cecilia Lynch, Social Movements and the Problem of Globalization, 23 Alternatives 149 (1998); Peter Spiro, New Global Communities: Nongovernmental Organizations In International Decision-Making Institutions, 18 Wash. Q. 45 (1994); Paul Wapner, Politics Beyond The State: Environmental Activism and World Civic Politics, 47 World Politics 311 (1995). It should be noted that while much of the focus in the above sources is on the increasing transnationalization of progressive social movements, many right-wing movements can be described in these terms as well. See, e.g., Lynch, supra note 46, at 150.
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transnational politics.47 In this literature, the state itself becomes a transnational subject as it pursues its goal of "achiev[ing] political power and influence in the sending or receiving countries."48 (Along with corporate transnationalism, transnationalism of the state and associated actors brings us back to "transnationalism from above."49) There is not nearly as much controversy about the idea of transnationalism as about state sovereignty and its decline. That individuals and communities maintain increasingly transnational lives, and that political and economic actors conduct their business in social fields not constrained by state boundaries, is rarely directly contested empirically. Nevertheless, a number of scholars - including some sympathetic to the enterprise - have offered various critiques of the transnationalism literature. Some have criticized the tone of breathless discovery that often imbues the work, pointing out that the process of transnationalism is nothing new as an historical matter; it is, in fact, as "old as labour migration itself."50 The more significant critiques challenge the idea of transnationalism as an analytical concept.51 Some commentators stress that the term confusingly invokes "disparate units of analysis (that is, individuals, groups, organizations, local states) and mix[es] diverse levels of abstraction."52 Others similarly charge that "transnationalism" is invoked to describe such a wide array of social phenomena that it threatens to collapse into meaninglessness.53 The concept's more thoughtful defenders acknowledge these shortcomings, but suggest there is much potential in what remains a "new and still fragile area of research."54
E.g., Robert Smith, Transnational Localities: Community, Technology and the Politics of Membership Within the Context of Mexico and U.S. Migration, in Transnationalism from Below, supra note 36, at 196-240. Portes et al., supra note 37, at 221. Id. at 221-23. The authors point out that "transnationalism from above" has been characterized with other conceptual frameworks, including economic globalization. Id. at 223. Id. at 218. Yet another criticism voiced in the literature is that transnationalist theory "doesn't take politics seriously." Jones-Correa, supra note 43, at 197. See also James Hollifield, Migration, Trade and the Nation-State: The Myth of Globalization, 3 UCLA J. Int'l L. & Foreign Aff. 608-12 (1998). This is arguably true of the literature focused on transnationalism-from-below. However, as argued in the text, some transnationalist theory is now specifically focused on transnational strategies of states and other political institutions. Portes et al., supra note 37, at 218. To the extent the term can include "transnational entrepreneurs who mobilize their contacts across borders in search of suppliers, capital and markets," "the political activities of party officials, government functionaries or community leaders whose main goals are the achievement of political power and influence in the sending or receiving countries," and "the manifold socio-cultural enterprises oriented toward the reinforcement of a national identity abroad or the collective enjoyment of cultural events and goods," id. at 221, the category is arguably too broad to be of much analytical use. Id. at 218 (noting strengths as well as weaknesses of the concept). 37
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B. Is Multiple Nationality a Form of Postnational Citizenship? I have so far suggested that, in order to begin to make sense of the commonly articulated claim that multiple nationality represents a form of "postnational citizenship," the idea of postnationality needs to be preliminarily defined. And I have argued that, based on its principal uses, the term should be read to denote a decline in state sovereignty, a rise in transnational experience, or both. Assuming that we are going to approach postnationality this way, and assuming that we are going to credit, at least to some degree, the empirical claims about globalization and its effects that underlie these definitions, we are still faced with the following question: To what extent do these processes help us understand the worldwide increase in the incidence of multiple nationality? A number of citizenship scholars have made the case that multiple nationality is very closely associated with these processes. On one side, the "decline of sovereignty" narrative has had substantial resonance in the scholarly literature addressing the subject of multiple nationality, with many analysts embracing some version of the argument.55 For some commentators, the pluralization of nationality implicates the aspect of state sovereignty concerned with control over national membership; the suggestion is that such control is undermined when increasing numbers of people become dual citizens at birth by operation of law - particularly when, as in some cases, the presence of the dual citizen's parents was not formally consented to.56 Other commentators, concerned with the idea of citizen allegiance to the sovereign, point out that states' expectations that they will possess the exclusive loyalty of their citizens are obviously thwarted when those citizens maintain allegiances to other sovereigns.57 Others still have contended that, to the extent that dual nationals exercise political rights in both countries of citizenship, the principle of non-intervention may be effectively thwarted.58 Finally, in a more theoretical mode, some analysts The connection between multiple nationality and sovereignty's decline is often asserted rather than argued, however, which means that the nature of the claims must be inferred from context. I refer to the debate over the propriety of according birthright citizenship to domestically born children of undocumented immigrants in states that apply a broad ius soli rule. One commentator describes the retention of dual nationality by increasing numbers of people as implying that "the nation-state can no longer take for granted the fidelity to the country of settlement on which rests the possibility of mobilizing troops and conducting war, [meaning that] one of the crucial functions of the modern state has been eroded." Cohen, supra note 43, at 519. See also Aristide Zolberg, Changing Sovereignty Games and International Migration, 2 Ind. J. Global Legal Stud. 153, 163-64 (1994) ("Among the industrial democracies as well as in the ex-Communist countries and the developing world, the monopolistic claims of the sovereign States over their subjects-citizens are increasingly questioned" in light of, among other things, the "growing number of formal holders of dual nationality"). This concern is often expressed in the United States with respect to Mexico. The fear is that Mexico will seek to influence U.S. policy via electoral participation of its dual citizens. Cf. Georgie Anne Geyer, No Place for Dueling Citizenships, The News and Observer, Jan. 21, 1997, at All (stating that dual nationality for Mexicans "is designed to create a Mexican lobby within the United States to push whatever policy the Mexican government of the moment desires"). 38
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have described how the linkage presumed to exist between a sovereign state's population and its territory is ruptured under conditions of multiplying nationalities. State sovereignty as we have known it becomes unrecognizable, one scholar has written, when "a territory and a people are no longer viewed as being 'inextricably' linked."59 The literature is ambiguous, or at least not fully consistent, on the question of the causal relationship between the rise in dual nationality and the decline in state sovereignty. Most commentators seem to regard the rise of dual nationality as an expression and a by-product of the broader globalization process and its resultant subversion of state sovereignty.60 Others seem to suggest that the rise of multiple nationality, and the legal changes that have made it possible, have themselves contributed to sovereignty's decline.61 Whatever the causal relationship, however, these analysts assume the existence of a strong nexus between the pluralization of nationality and sovereignty's decline. On the other side, a variety of commentators have linked the worldwide proliferation of multiple nationality with rising transnationalism. Much of the focus is on the transnational experience of the dual nationals themselves. Dual or multiple nationality is sometimes described as the political foundation of the transnational experience, enabling cross-national migrants and their children to lead dual or multiple lives across national borders.62 At the same time, transnationalism is Jacobson, supra note 8, at 444. As David Jacobson writes, the growing tolerance of dual citizenship in many countries over past two decades has produced, a disaggregation of the nation-state. The political, communal, and territorial components of the nation-state, once thought so intertwined as to be unremarkable, are being unbundled... [A] territory and a people are no longer viewed as being "inextricably" linked... Citizenship no longer designates "belonging-in-space" and decreasingly answers the question, "Who am I?" Id. at 444-45. See, e.g., articles cited supra notes 4-9. See, e.g., Alfredo Corchado & Laurence Iliff, Double-Edged Sword: Latin American Governments Weigh Emigrants' Right to Vote in Their Native Countries, Dallas Morning News, Sept. 21, 1997, at 1A ("Some political analysts say that Latin American governments are dangerously close to giving away their sovereignty as they promise their emigrants political rights such as dual nationality and, eventually, the opportunity to vote abroad. 'This is a scary issue for Mexicans,' said Rodolfo de la Garza, a U.S.-Mexico specialist at the University of Texas at Austin. The right to vote abroad raises the possibility that voters in Chicago or Dallas in a close election may elect the next president of Mexico.'"). See, e.g.., Faist, supra note 34, at 209-10 ("The natural equivalent to political activities and identities spanning nation-state borders in the formal political sphere is dual state membership. This form of transnational citizenship does not deny the existence or relevance of borders and nation-states. It simply recognizes the increasing possibility of membership in two states... From the immigrants' point of view, dual state membership constitutes a deliberate strategy to protect various rights in multiple states. This strategy has become more prominent, not least because many nation-states have liberalized their citizenship laws.") Michael Jones-Correa has argued that dual citizenship "seems to come close to resolving the dilemma of liminality" (by which he means "the dilemma of being caught between two nations") faced by many Latin American immigrants, since it serves to recognize multiple identities and commitments. Jones-Correa, supra note 43, at 193-95 (But note that Jones-Correa does not use, but instead criticizes, the concept of transnationalism. Id. at 196-98.).
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described as shaping the lived experience of dual nationality: for multinationals today, membership in two locations is often concurrent rather than successive (the more common mode in earlier periods), creating a new "politics of simultaneity."63 Some commentators emphasize the value of the individual choice involved in leading multiple national lives; this strand of literature treats the opportunity to maintain multiple nationalities as a vital dimension of self-determination.64 Others focus principally on states and other collective political actors, and are concerned with the strategies they adopt in allowing for or accommodating the status of dual nationality. In this account, dual nationality presents migrant-sending states with an opportunity to practice a transnational mode of statist politics. Again, there is some uncertainty about causality: it is not always clear to what degree legal changes allowing for dual nationality are understood to have resulted from the transnational experience of increasing numbers of people, and to what extent those legal changes themselves have contributed to that experience and made it more available and more common. Either way, the rise of dual and multiple nationality is routinely viewed as a fundamental feature of the current, increasingly transnational Zeitgeist. If many scholars thus assume a close association between increasing rates of dual nationality and the decline in state sovereignty or the rise in transnational experience, as the postnationalist argument would seem to require, we still need to ask whether they have got it right. Is this an accurate and productive way to think about recent developments in the policy and practice of multiple nationality? Initially, I am inclined to respond that there is no satisfactory way to answer this question without further defining our terms. The literature reviewed above makes clear that even within the two principal domains of postnationality discourse, there is little uniformity of approach. When different scholars address the issue of multiple nationality, they are focused on different dimensions of sovereignty and different aspects of transnational experience - and they sometimes define the terms differently altogether. As a Laguerre, supra note 38, at 177 (describing emergence of the "politics of simultaneity" rather than "succession"). Thomas Franck is the foremost proponent of this position. In his view, there is today a growing consciousness of a personal right to compose one's identity... [This entails] a world in which each individual will freely choose a personal identity constructed out of a broad array of building blocks: a world in which self-determination evolves from a plural to a singular entitlement, from a right of peoples to one of persons. Moreover, Franck writes, the response of a legal system to a citizen's claim to " 'dual nationality' is an excellent indicator of that society's tolerance not merely for multiple loyalty but for the right of individuals to choose their affiliations." Thomas M. Franck, Clan and Superclan: Loyalty, Identity and Community in Law and Practice, 90 Am. J. Int'l L. 359, 359-60, 378 (1996). See also Enid TruciosHaynes, Latent Theory and International Civil and Political Rights: The Role of Transnational Identity and Migration, 28 U. Miami Inter-Am. L. Rev. 293, 301 (1997) ("This change in the relationship of the individual to the state, resulting from an increased recognition of dual nationality, may be a key step toward true global pluralism in which the ties that bind us are based on our own choice of a singular citizenship-based identity or a more multilayered transnational identity."). 40
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result, we remain faced with a multiplicity of disparate claims about the meaning and significance of plural nationality (many of which, I should add, are asserted somewhat off-handedly by their proponents rather than argued in any systematic fashion). That said, I believe some general comments about the utility of the "decline of sovereignty" and "rise of transnationality" frameworks in this context are possible. Regarding transnationalism first, it seems to me that the concept has been quite useful in casting light on the significance of dual or multiple nationality in the contemporary period. In particular, the literature's emphasis on simultaneous memberships has helped us understand that dual nationality is often experienced differently today by bearers of the status than the old successive-membership model would suggest. Many dual nationals wish to maintain fundamental connections of various kinds with more than one national locale, and regard their dual or multiple nationality as a means toward that end. Equally important, the cross-border actions of many citizen-sending states to facilitate these efforts while retaining connections to their nationals are made more comprehensible by this framework. Still, I would offer a few notes of caution. It is important to recall, first of all, that not all dual nationals are transnationals. Many (though we do not have data on this) are still engaged in successive, rather than simultaneous, membership experiences. These are people who really do wish to transfer their fundamental commitments and identities to the country of naturalization, or who retain a second nationality in a purely passive sense. The transnationalism framework runs the risk of obscuring the continuing prevalence of this more traditional trajectory.65 Second, not all transnationals are dual nationals. The vast majority probably are not. Indeed, not all transnationals have legal status in the second country, much less citizenship. Transnationality does not depend on dual nationality, though it certainly may be facilitated by it. This may be why the matter of legal status is never even mentioned in most literature on transnationalism among migrants. Finally, and more conceptually, I would return to the concern voiced by some critics that the idea of transnationality is analytically overbroad and undertheorized. In particular, it seems problematic to characterize state-sponsored transnational activities which are undertaken for specifically national ends alongside the kind of diasporan, cosmopolitan consciousness that some transnationalist theorists attribute to "transmigrants," including dual nationals. In both cases, social and political actors are acting beyond the constraints of national borders; however, the transnationalism is purely instrumental in the first case, while, in the second, it is sometimes described as an ethic or an aesthetic worth defending in its own right. Hence, the literature is somewhat ambiguous as to whether and when transnationalism should be regarded as a set of strategies for defending national interests in a rapidly globalizing world For a similar point, see Martin, supra note 2, at 11 ("[S]ome aliens may want a fresh start, may want to use the occasion of naturalization to break official affiliation with another polity, and hence cut off duties and obligations (as well as rights) that flow from those earlier ties."). 41
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or as a state of experience and consciousness that transcends or supersedes national constraints altogether. Until this ambiguity is worked out in a more satisfactory manner, it seems to me that the concept of transnationalism will remain more suggestive than explanatory when applied to dual nationality as well as to other emerging social developments. As for sovereignty and its decline, it strikes me that, while this narrative usefully captures aspects of the changes wrought by the pluralization of nationality - particularly (and most obviously) the fact that states often no longer command the exclusive allegiance of their subjects - it also has significant limitations when applied in this context.66 First of all, the claims linking multiple nationality to declining sovereignty are often vague about precisely which or whose sovereignty is undermined. It is often not clear, in particular, whether commentators are talking about the abridgement of the sovereignty of certain individual states or about the decline of state sovereignty in a more systemic sense.67 The distinction is important for this reason: even assuming that some states suffer a decline in their autonomy and independence by virtue of the process of rapidly pluralizing nationalities,68 this decline arguably has little bearing on the condition of sovereignty writ large. Certainly, the increasing incidence and acceptance of multiple nationality reflects a world in which the claims of particular states on individual citizens are less absolute than they once were, and in which, conversely, citizens are less rigidly tethered to particular states. Yet it is still the case that the status of dual or multiple nationals remains anchored to nationstate institutions. The site of nationality may now be multiple, but the status remains nationality nonetheless. Furthermore, it is not the case, under a regime of multiplying nationalities, that any other sort of institution has interposed itself between citizen and state. Nationstates still retain near-complete authority to determine the criteria for citizenship in their communities and to make individual citizenship-determinations.69 With narrow For other critiques of the decline of sovereignty argument in the immigration and citizenship arena in general, see Christian Joppke, Immigration and the Nation-State: The United States, Germany, and Great Britain (1999); Hollifield, supra note 51, at 605-06; Gary Freeman, The Decline of Sovereignty? Politics and Immigration Restriction in Liberal States, in, Challenge to the Nation-State: Immigration in Western Europe and the United States 86-88 (Christian Joppke ed., 1998). See also Miriam Feldblum, Managing Membership: New Trends in Citizenship and Nationality Policy, in From Migrants to Citizens: Membership in a Changing World 475-99, 490-92 (T. Alexander Aleinikoff & Douglas Klusmeyer, eds., 2000) (describing scholarly objections to argument that state sovereignty has diminished vis-a-vis matters of immigration and citizenship). The distinction is often not made clear in the general literature on sovereignty and its decline. While some authors seem to be concerned with the sovereignty of individual states, others seem to be raising "questions about the long-term viability of the state system in its current form." Murphy, supra note 14, at 109. I offer more about this assumption below. See, e.g., Donner, supra note 28, at 28-29 (citing the Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930). Article 1 provides: It is for each State to determine under its own law who are its nationals. This law shall be recognized
42
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exceptions, there is currently no international law governing matters of nationality. As one analyst has observed, under the current citizenship system, "priority is still given to national sovereignty which ordains that every 'nation' has a right to its own territorially delimited state [and] its own membership rules ..."70 And significantly, the rules pertaining to dual or multiple nationality itself are of individual states' making.71 Although a handful of international mechanisms exist to resolve conflicts that may arise in cases of dual nationality,72 nation-states still establish their own policy on the subject. To the extent that dual or multiple nationality is increasingly tolerated today, this tolerance is a function of states' own decisions. This is not to say that state sovereignty at the systemic level is not threatened by other recent developments that possibly include the proliferation of memberships at levels of governance other than that of the nation-state.73 But multiple nationality itself seems a rather poor example of this threat. The pluralization of memberships in this case occurs laterally among nation-states; state power is not displaced but simply divided. Nationality, whether individual or multiple, is still characterized by a primary relationship between individual and nation-state. All of this may amount to a dynamic of increasingly shared sovereignty among states with regard to the regulation of nationality. But even under these circumstances, the nation-state as institution remains sovereign in this domain. It is also worth examining the claim that individual states have suffered a decline in sovereign authority as a result of rising rates of dual or multiple nationality. This is a claim that must be qualified by distinguishing among states. The distinction between predominantly citizen-sending and citizen-receiving states is critical. With respect to receiving states, some have argued (as indicated earlier) that dual nationality undermines national sovereignty to the extent that states find themselves with by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality. Article 2 continues: Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State. Percy Lehning, European Citizenship: A Mirage?, in Citizenship, Democracy and Justice in the New Europe 185 (Percy Lehning & Albert Weale eds., 1997). According to one authority, it remains the case that disputes over questions of nationality are normally within the competence of national tribunals, and further, ... "any question as to the acquisition or loss of a particular nationality by any person is to be decided by the application of the law of the State of which the person is claimed to possess, or not possess, the nationality." Donner, supra note 28, at 17 (quoting Schedule of Points Drawn up by the League of Nations Preparatory Commission, Feb. 15, 1928, League of Nations Doc. C.44.M.21.1928.V.§). See Convention on Certain Questions Relating to the Conflict of Nationality Laws, Apr. 12, 1930, 179 L.N.T.S. 89 (providing rules for states to handle claims involving dual nationals without conflict); Convention on the Reduction of Cases of Multiple Nationality, May 6, 1963, Europ. T.S. No. 43. Some bilateral treaties exist as well. See P. Weis, Nationality and Statelessness in International Law 186-89 (1979); Patricia McGarvey-Rosendahl, A New Approach to Dual Nationality, 8 Hous. J. Int'l L. 305, 307 n.27 (1986). See discussion infra Part II. 43
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less control over the constitution of their membership and to the extent that they become more susceptible to the influence of other states' agendas through the political participation of dual nationals. These claims have been subject to contention in the literature.74 But beyond these disputes, there is also a case to be made that plural citizenship may actually work to enhance the power and effectiveness of some citizenreceiving states in today's world. According to Peter Spiro, for example, "[d]ual citizens build economic links overseas, expanding opportunities [in the United States] for trade and investment."75 Spiro and Peter Schuck have likewise contended that American dual nationals can powerfully serve their nation's interests - and enhance their nation's influence - by conveying U.S. democratic values abroad.76 Correspondingly, with respect to sending-states, it seems fairly indisputable that the notion of exclusive allegiance traditionally associated with sovereignty is undermined when a state's nationals acquire second nationalities elsewhere.77 But perhaps the sovereignty of these states might be augmented when their nationals acquire additional nationalities, at least to the extent that these individuals serve as political and cultural ambassadors of their original country's interests in the new locale and to the extent they assist the macroeconomic status of their home country via investment and remittances.78 The claim that plural nationality actually enhances, as well as undermines, state power (or the power of at least some states) may be contestable, but it is plausible enough to suggest some circumspection to those who uncritically embrace the idea that plural nationality leads to national decline. It is difficult to deny that the nature of state sovereignty has been significantly transformed in recent decades, but it seems to me too easy to overstate the significance of multiple nationality in this process.
See, e.g., Martin, supra note 2, at 8-10; Spiro, supra note 2, at 1479-82. Victor Chen, One Person, Two Passports, Newsday, Jan. 3, 1999, at A7 (repeating views of Professor Peter Spiro). See Peter Schuck & Peter Spiro, Dual Citizens, Good Americans, Wall St. J, March 18, 1998, at A22 ( "As naturalizing Americans assimilate our democratic values by participating as citizens here, those who retain the vote in their old countries can promote these values there, as Dominican-Americans and other dual citizens are already doing."). See also Tomas Hammar, Democracy and the NationState 219 (1990) ("Dual citizenship may ... be advantageous for the states involved."). Some sending states have been particularly anxious about the prospect of allowing their nationals who have acquired second nationalities and who reside in the country of second nationality to vote in the home state. See supra note 61. In order to redress this concern, the Mexican Nationality Amendments of 1998 render dual nationals residing in the country of second nationality ineligible to vote. I note that this scenario depends on transnationalist premises. The notion that dual nationals serve as political ambassadors for the country of first nationality has been a source of anxiety for those opposed to dual nationality: "The charge is that the new citizens will become a lobby voting the preferences of the foreign state, rather than voting based on their own assessment of wise policy for their country of residence." Martin, supra note 2, at 10. Martin largely rejects this charge, as do other commentators. Id.; Peter Schuck, Membership in the Liberal Polity: The Devaluation of American Citizenship, 3 Geo. Immigr. L.J. 1, 13 (1989); Spiro, supra note 2, at 1472-73. 44
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II. PLURAL CITIZENSHIP BEYOND THE NATION In arguing that the proliferation of multiple nationalities only partially and sometimes inadequately illustrates citizenship's postnationalization, I do not intend to dismiss the idea of postnational citizenship altogether. In fact, I would contend - and I have elsewhere argued - that citizenship is quite reasonably described as postnational in some circumstances.79 I want to suggest simply that the case for postnational citizenship is limited when we confine our focus to multiple nationality and that it is better made when we go beyond citizenship-as-nationality to examine citizenship in its other dimensions. Although it is common among some legal and political thinkers to reduce the idea of citizenship to that of formal legal-membership status in the nation-state, citizenship is a concept that has been employed in scholarly and in popular discourse to signify a variety of other political and social relationships.80 The legal status of citizenship, first of all, need not be confined to national legal status; it has been common over the years to speak of citizenship of other governmental units, including states, provinces, and other localities.81 Moreover, many conventional understandings of citizenship extend beyond legal status altogether. In the sociological tradition of T. H. Marshall,82 the idea of citizenship is employed to refer to the individual's possession and enjoyment of fundamental rights in society. In the civic republican tradition, citizenship names a state of active engagement in the life of a polity. And finally, in psychological or cultural terms, the term citizenship is invoked to refer to an experience of identity and solidarity that a person maintains in collective or public life.83 Once we begin to think about citizenship as itself a plural concept, one that extends beyond formal national membership status to encompass a variety of other social institutions and practices, the idea of citizenship's increasing postnationality can seem more plausible and more meaningful.84 First, where individuals maintain multiple and significant formal legal attachments to governmental units both above and below the national state, exclusive nation-state sovereignty is to some degree See Linda Bosniak, Citizenship Denationalized, 1 Ind. J. Global Legal Stud. 447, 452, 453-89 (2000). Most commentators concur that "citizenship" designates community membership of some kind, see, e.g., Michael Walzer, Citizenship, in Political Innovation and Conceptual Change 211 (Terrence Ballet et al. eds., 1989); J.M. Barbalet, Citizenship 20 (1988); David Held, Between State and Civil Society: Citizenship, in Citizenship 20 (Geoff Andrews ed., 1991). But the term has an enormously broad range of uses, not all of which are compatible. For extensive discussion on this point, see Bosniak, Citizenship Denationalized, supra note 79. For a recent review and discussion, see Peter Schuck, Citizenship in Federal Systems, 48 Am. J. Comp. L. 195 (2000). T.H. Marshall, Citizenship and Social Class (1950). For some commentators, these different understandings reflect distinct "dimensions" of a single phenomenon. But other commentators seem to regard these categories as designating sometimes incommensurable discourses about citizenship. While this is not the occasion for a full discussion, what follows is a brief sketch of the argument. 45
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undermined. Indeed, federal systems have been described by some commentators as systems of dual sovereignty, and supranational citizenship in entities such as the European Union as entailing the "surrender [by states of] some of their sovereignty to a larger entity."85 At the same time, where formal citizenship status is associated with a supranational body like the E.U., such citizenship is fairly characterized as transnational in character, at least to the extent that citizens collectively experience themselves as participants in a political space or as members of a political entity not reducible to the confines of any particular nation-state. Similarly, to the extent that we approach citizenship as the possession and enjoyment of rights, the claim that citizenship is taking increasingly postnational form also seems eminently defensible.86 While nation-states continue to define the nature and scope of most rights, as well as to enforce them, states are no longer the sole source of existing positive rights. The international human rights regimes that have taken shape in the post-World War II period are designed to implement standards, set out in a variety of multilateral agreements, for the treatment of individuals by states.87 These standards, which encompass civil, social, and sometimes cultural rights, represent an alternative source of rights that transcends the jurisdiction of individual nation-states.88 One might object to this characterization by pointing out that there are real limits to the international human rights system, and that people still face serious constraints in enforcing the rights on-the-books. Nevertheless, it remains the case that the rights commonly associated with citizenship are no longer entirely constrained by nationstate boundaries. And most significantly for present purposes, state sovereignty is directly compromised to the extent that the human rights system purports to impose minimum standards on states with regard to the treatment of their own nationals. Meanwhile, the international human rights regime has spawned a political culture Schuck, supra note 74, at 199. The discussion in this paragraph and in the following two paragraphs is drawn substantially from Bosniak, Denationalizing Citizenship, supra note 79; Linda Bosniak, Denationalizing Citizenship, in Citizenship Today: Global Perspectives and Practices (T. Alexander Aleinikoff & Douglas Klusmeyer eds., 2001). Recently, commentators have urged that international law recognize the rights of cultural minority groups as well as of individuals. See, e.g., Will Kymlicka, Multicultural Citizenship, A Liberal Theory of Minority Rights (1995). For now, however, the human rights regime is largely concerned with the status of individuals rather than cultural groups. Id. Some scholars have recently begun to characterize the rights guaranteed under the international human rights regime as representing a burgeoning form of citizenship-beyond-the-nation. Soysal, for example, contends that the postwar era has witnessed a "breakdown of the link between the national community and rights," giving rise to the development of a new "postnational" form of citizenship. Yasemin Nohuglu Soysal, Changing Parameters, supra note 5, at 512. Political theorist Rainer Baubock has similarly asserted that "[h]uman rights are the cornerstone as well as the most extended application of a transnational conception of citizenship." Rainer Baubock, Transnational Citizenship 240 (1994). Baubock also writes, however, that "[s]tronger enforcement of human rights by international agencies should not be seen as a move towards 'global citizenship' but it could be characterized as the quest for a 'polity of polities'..." Id. at 248.
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and has given rise to political advocacy organizations that - like other issue-based transnational organizations (including movements of environmentalists, feminists, trade unions and others) - are transnational in the sense that they operate in the sphere of global civil society, they employ transnational lobbying and organizing techniques, and they evoke a sense of mission among their members that transcends any particular national interest. The sort of politics they are engaged in can be characterized as citizenship in the Aristotelian sense: it is active engagement in the life of a political community. What is distinctive about this citizenship is that the political community in which it is enacted is a transnational one; this is politics practiced across and beyond national borders.89 Such politics, I should add, sometimes entails a fundamental threat to state sovereignty to the extent that its practitioners seek to effect changes in policy not merely at the international level but also within the individual nation-states themselves. These arguments regarding citizenship's location beyond the nation-state require far more elaboration than I can undertake here. The point I want to make for now is simply that citizenship possesses a variety of aspects, or dimensions, and the idea of postnational citizenship needs to be read in light of all of them. Certainly, the rise of multiple nationality highlights the changing relationship, institutional and affective, between individual and nation-state in the current period. But it is only one part a relatively modest part - of that process.
III. CONCLUSION: TOWARD A NORMALIZATION OF MULTIPLE NATIONALITY The common depiction of multiple citizenship by reference to the language of postnationality is in one sense understandable: commentators seek a way to convey Some will argue that activity of this kind, however transnational, cannot be described as "citizenship," because republican citizenship can only be meaningfully practiced within a political community - by which is meant a formal, organized, territorially-based community with some degree of sovereign selfgovernance. In response, however, one can draw on rich, anti-statist conceptions of politics - conceptions which urge recognition of citizenship and its practices in the economy, in the workplace, in the neighborhood, in professional associations, even in the family. E.g., Carol Pateman, Participation and Democratic Theory 45-102 (1970); Robert Dahl, Democracy and Its Critics 324-32 (1989); Susan Moller Okin, Women, Equality, and Citizenship, 99 Queen's Q. 56, 59 (1992). This more expansive conception, citizenship is practiced in the realm of civil society and not merely the state - often by way of the "new social movements." The idea of postnational citizenship takes this conception one step farther by looking at political practices in the domain of global civil society. There seems to be no a priori reason that such activity cannot be described in the language of citizenship. And transnational political activity arguably fulfills the normative criteria of republican and participatory democratic conceptions of citizenship very well. It is robust and engaged, and it reflects "commitment to the common good and active participation in public affairs." Richard Dagger, Civic Virtues: Rights, Citizenship, And Republican Liberalism 99 (1997). The difference is simply that the notions of "common good," and the public domain involved, are drawn more expansively than they usually are within the tradition. See generally Bosniak, Citizenship Denationalized, supra note 79. 47
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that something new and significant is going on, and to give it a name. I have suggested, however, that the claim is ultimately excessive. The rise of multiple nationality simply does not represent a "shattering" of citizenship, nor the harbinger of a "borderless world," to use the overheated language of one observer.90 States are not being displaced as the sites of citizenship; rather, national sites of citizenship are simply being multiplied. Furthermore, there is a danger in characterizing multiple nationality in such terms. As I see it, doing so exaggerates multiple nationality's significance. The idea of postnationality, it must be noted, is not merely descriptive; it also possesses an emotive content. The term evokes a sense of radical disjuncture from the (national) present, usually with an undertone of celebration - though sometimes with a sense of foreboding instead. In either case - whether the postnational moment is celebrated or condemned - describing plural nationality in these terms leads to an overstatement of its effects on states, and perhaps, as a result, to more restrictive responses. To the extent that one supports the emerging tolerance of states, to the extent that one wishes to support the rights of people to enjoy full rights and status where they actually make their lives, it seems to me that we should treat multiple nationality as more routine. We are better off emphasizing that current developments represent an extension of, and not a departure from, longstanding citizenship practices. Perhaps the lessons of federalism are instructive here. We routinely accept the existence of concurrent vertical - some say "nested" - memberships in various contexts. This is a kind of "citizenship pluralism" that is often regarded as quite natural.91 Perhaps concurrent horizontal memberships among states can be characterized as another version of such plurality. Such an approach would be inspired by certain normative commitments: ensuring rights and recognition for all of a community's residents, defending an individual's choice of membership identity and, above all, acknowledging the plurality of affiliations and identities that characterize the lives of increasing numbers of people. I leave development of the precise contours of such an approach to others.92 For the present, my goal has simply been to examine a central interpretation of multiple nationality advanced by scholars, and to suggest that the characterization of multiple nationality as a form of postnational citizenship requires further reflection and qualification.
90 91
92
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Rubenstein, supra note 4, at 183. Schuck, supra note 74, at 200 (characterizing concurrent national and subnational citizenships as a form of "dual citizenship"). A thoughtful set of proposals for a generally (though not entirely) liberal multiple nationality regime is developed in Martin, supra note 2, at 21-34.
CHAPTER 3 COMMENT
BOSNIAK ON THE POSTNATIONAL TRANSFORMATION OF CITIZENSHIP
Klaus-Dieter Schnapauff
Because my comments will be restricted to public and constitutional law aspects, I will not fully do justice to the much broader approach taken by Professor Bosniak, who has addressed aspects of social science, political science, and culture. There is a saying, both in German and in English, and probably also in other countries and languages, according to which "a cobbler should stick to his last." I am a lawyer focusing on public and constitutional law, and also a practitioner. Therefore I intend to heed that admonition and not to address aspects about which I do not know much. Nonetheless, the restriction to public and constitutional law aspects also gives rise to an interesting dialectical contradiction to some of the hypotheses proposed by Professor Bosniak.
I. CITIZENSHIP FROM THE PERSPECTIVE OF PUBLIC LAW First, I want to comment on the terms "postnational" and "transnational." Public law deliberation and definition regarding citizenship focus on the special rights and obligations of the citizens going beyond the rights to which everybody is entitled, in particular general human rights, as well as going beyond the obligations everybody has. The term "nationality" is more comprehensive and includes above all cultural characteristics. It is not synonymous with the term "citizenship," a distinction clearly made in the German and English languages. The terms "postnational" and "transnational" used by Professor Bosniak therefore describe very interesting and appealing phenomena which need to be looked at closely. However, they must not be associated with the term citizenship in constitutional law terms. It is true that, due to globalization and increasing mobility, and in particular due to the related convergence of political and social systems and the David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 49-51 © 2003 Kluwer Law International. Printed in Great Britain.
K.-D. Schnapauff growing permeability of borders, citizenship increasingly loses one of its traditional characteristics, i. e., the delimiting character it used to have under the nation-state way of thinking in the 19th century. Citizenship nevertheless retains its exclusive character in the sense that only those who hold citizenship have the particular rights and obligations associated with it. Therefore, under constitutional law aspects, there is no development towards a "postnational citizen," even if the subjects to which citizenship relates, the states, may change and even merge into larger units, for instance in the course of further European development and unification. When you look at the content of the special rights and obligations associated with citizenship - we are dealing with the democratic participatory rights forming the core of the democratic community, such as the right to vote and stand for election - you find that "postnational" or "transnational" cannot mean "postdemocratic" or "transdemocratic." Let me add that the concept of the "postnational citizen" - associated with globalization and increasing mobility - does not do justice to the great number of people leaving their home countries for political, economic, or social reasons as refugees or persons seeking asylum - in many cases to flee extreme poverty.
II. MULTIPLE NATIONALITY AND THE DECLINE OF STATE SOVEREIGNTY One of the hypotheses proposed by Professor Bosniak is that the rising rate of multiple nationality is an indicator of the decline of state sovereignty. This is a view I cannot share. In particular I do not agree that multiple nationality leads to a divided sovereignty of the states concerned vis-a-vis their nationals. Every state treats its citizens exclusively under its own law. Nothing else can be derived from the conflict-of-law rules provided in particular by international private law. The view or concern is sometimes expressed, from a perspective that is not primarily concerned with legal issues, that the rising rate of multiple nationality gives the immigrant-sending countries new ways of exerting their influence on the states of residence via their nationals. There even seems to be empirical evidence. It has been reported in the press, for instance, that the Turkish President appealed to Turkish nationals in Germany to be naturalized in Germany so as to be able to influence German politics in line with Turkish views. However, so far there is no (hard) evidence to suggest that such efforts have been successful. To date, all we have seen are appeals, and, to an even greater extent, we have been warned about their consequences. We have not been able, though, to identify any serious consequences relevant in political or legal terms. In the target countries of migration in Europe, we are far from having a real existing parallel society which might weaken state sovereignty. Therefore it is safe to assume that these are theoretical concerns and speculations rather than a real existing phenomenon. What is the reason for this? In contrast to Professor Bosniak, I contend - but I am afraid that I will not be able to go into this in great detail here - that the
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continued existence of the previous nationality is not irrelevant for the relationship between the state and society on the one hand and the state and the naturalized person on the other. What is much more important, though, is the issue of integration of those willing to be naturalized or those who actually are naturalized. This is the ultimate key to addressing the problem of migration in a useful manner which does justice to all parties, a solution which Professor Bosniak has rightly claimed to be one of the fundamental tasks of today's politics. In other words, multiple nationality loses its importance to the extent that those who are or will be naturalized are integrated into the host society. To the extent that integration is successful, the issues of whether the previous home country asserts influence or whether there is a decline in state sovereignty become less and less important. After all, naturalization only comes into question for foreigners who have lived in the country for a long time or, in particular, for foreigners who were born in the country and who are largely integrated into the host society. Integration is not only related to language skills in line with the education level of the person concerned, but also to familiarity with the political, social, and legal basic order, and to participation in working and economic life, etc. Integration does not mean that immigrants give up their cultural identity, i.e., that they are assimilated. What is also very important for real integration is adopting and recognizing the main basic values of the state community, such as wishing to co-exist peacefully, to shape the future together, and to be clearly committed to the core values of a free society. In a democracy, integration also means taking part in political life. Let me quote from the legal history of the Draft Act to Reform the Nationality Law in Germany, as put forward by the Federal Government last year, in which this concept is expressed in a very convincing manner: It is not tolerable for any state if a large number of its citizens stays outside the public community over decades and is excluded from the citizen's rights and obligations vis-a-vis the state. Furthermore, it is a democratic principle to establish a congruence between the holders of democratic political rights and the resident population permanently subject to the public rule. If and when the legal provisions governing naturalization take these maxims into account, which, I find, is increasingly the case, the law effectively heads off the emergence of a parallel society and therefore a decline of state sovereignty.
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CHAPTER 4
EFFECT OF NATIONALITY AND DUAL NATIONALITY ON JUDICIAL COOPERATION, INCLUDING TREATY REGIMES SUCH AS EXTRADITION
Stefan Oeter
I. INTRODUCTORY REMARKS Judicial cooperation is gaining more and more importance in the relations between states. The reasons are manifold: the rapid growth of tourism, bringing floods of individuals to the remotest corners of the world; the growing mobility of capital, with a high mobility of managers and experts as a consequence, the intensifying migration of workers from poor regions to the centers of wealth and industry; and the globalization of science with all its repercussions like the ever growing exchange of scientists and students. All this has led to a situation where territory and people become separated categories to a degree unimaginable some decades ago. The traditional criteria of statehood - territory and people - thus tend to become distinct categories, with personal and territorial jurisdiction tending to cover more and more different groups of people. Many states have large numbers of foreigners residing in or visiting their territory, who thus become subject to their territorial jurisdiction, while at the same time huge numbers of their own nationals reside in foreign states, thus becoming subject to foreign territorial jurisdiction. The simultaneous use of territorial and personal jurisdiction as criteria of state authority over people thus ends up in large phenomena of overlapping jurisdiction. This inevitably leads to problems. Sorting out who is competent to deal with which problem becomes more and more complex, and often there is no alternative to accepting that several states are competent to exercise jurisdiction. Exercising jurisdiction, particularly in the form of judicial proceedings, over persons who have their cultural and family backgrounds in another state, who have lived abroad, and who may have committed criminal offenses abroad, has proven to be a rather difficult business. To complete a successful judicial procedure under these circumstances often will require the assistance of other states, by extraditing an accused, by gathering and delivering evidence, and by recognizing and enforcing judgments. David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 55-77 © 2003 Kluwer Law International. Printed in Great Britain.
S. Oeter
Judicial cooperation is an instrument developed to solve these problems. It has a long tradition, although historically it was restricted in scope, because only a few cases arose which needed to be solved in the ambit of state-to-state judicial cooperation. This has become very different in the last few decades, as the number of such cases grew enormously. In addition, the range of instruments used in judicial cooperation experienced a process of differentiation. The whole sphere of judicial cooperation now has become a highly complex and technical field with its own specialized experts in ministries and in the judiciary. Even trained international lawyers find it difficult nowadays to master all the complexities of this field. One might assume that the ever expanding phenomenon of dual nationality would lead to additional problems in the already complex business of judicial cooperation. Because personal jurisdiction (nationality) always has been - and continues to be one of the essential criteria in constructing a link of jurisdiction between a person and a state, it would be logical that any problem in assigning a person to a state that is responsible for him would obstruct the task of creating clear rules on competence (and cooperation). If a person is subject to more than one personal jurisdiction, it might be doubtful which state may claim the competence to conduct proceedings in criminal or civil matters concerning that person. From a theoretical perspective, dual nationality thus might be perceived as a severe danger to the functioning of judicial cooperation, because it tends to blur further the attribution of jurisdiction. Surprisingly, a survey of legal literature dealing with judicial cooperation1 demonstrates that problems arising out of dual nationality do not play any serious role in the legal debate concerning matters of judicial cooperation. One can find only marginal hints of practical problems connected to dual nationality, and these practical problems seem to be so unimportant that few practitioners (most writings on judicial cooperation are written by practitioners) feel motivated to deal expressly with issues of dual nationality in judicial cooperation in their writings. Even academics have rarely come to the idea of seriously discussing problems of judicial cooperation resulting from dual nationality. This initial finding left the author with a certain perplexity. Could it be that dual nationality does not lead to significant As basic sources of reference in international legal doctrine concerning judicial cooperation, the author used W. Schomburg / O. Lagodny, Internationale Rechtshilfe in Strafsachen. Kommentar zum Gesetz uber die internationale Rechtshilfe in Strafsachen (3rd ed. 1998); G. Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms (1998); P. Stone, Civil Jurisdiction and Judgments in Europe (1998); van den Wyngaert / Stessons (eds.), International Criminal Law (1996); A. Eser / O. Lagodny, Principles and Procedures for a New Transnational Criminal Law (1992); E. von Bubnoff, Auslieferung, Verfolgungsubernahme, Vollstreckungshilfe. Ein Handbuch fur die Praxis (1988); Nagel, Beweisaufnahme im Ausland (1988); Schwaighofer, Auslieferung und Internationales Strafrecht (1988); R. Geiger, Legal Assistance Between States in Civil Matters, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Inst.9 (1986), pp. 241 et seq.', R. Geiger, Legal Assistance Between States in Criminal Matters, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Inst.9 (1986), pp. 248 et seq.; LA. Shearer, Extradition in International Law (1971).
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problems in judicial cooperation, although theoretical reasoning suggests that there should be a problem? The following observations will start from the assumption that the lack of any serious academic debate on the questions to be dealt with in this paper signals that dual nationality has not created substantial problems in the field of judicial cooperation. Such an assumption does not close the debate on the effects of nationality on judicial cooperation. To the contrary: I think it opens the mind to try to reconstruct the genuine role nationality really plays in judicial cooperation. An attempt to assess the true effects of nationality on judicial cooperation might give an answer also to why the consequences of dual nationality have generated no significant attention before now in the debate on matters of judicial cooperation. One problem remains, however. Judicial cooperation is a highly complex notion, which tends to cover a broad range of instruments that have been developed by states in order to assist other states in their judicial proceedings. The following remarks will have to climb down from the aggregate concept of "judicial cooperation" to the specific instruments used in such cooperation. The effects of nationality might differ from one instrument to another. The following analysis will start with judicial cooperation in criminal matters, taking the traditional legal institution of extradition as a paradigmatic example. Other instruments will have to be analyzed as well, such as the transfer of sentenced persons, the execution of foreign judgments, and assistance in securing evidence, in the surrender of property, or in search and seizure. In a second part, the study will analyze the various issues of judicial cooperation in civil matters, such as the execution of foreign judgments, the taking of evidence abroad, and the service of documents abroad. In pursuing this line, the following remarks will be highly technical. But a study on judicial cooperation cannot avoid a certain degree of technicality.
II. JUDICIAL COOPERATION IN CRIMINAL MATTERS A. Extradition Extradition is the most traditional instrument of judicial cooperation in criminal matters.2 When a state, having physical control over a person who is suspected of having committed a crime abroad, comes to the conclusion that another state is better suited to conduct criminal proceedings, the transfer of the suspected person to that state is a logical step. Extradition mostly will be a consequence of a calculus of convenience, since the state where the act was committed is, under practical considerations, in a much better position to conduct criminal proceedings than the See Schomburg/Lagodny (note 1), comments vor § 2 and to §§ 2-12 IRG; B. Loos, Das Auslieferungsrecht der Bundesrepublik Deutschland unter besonderer Berucksichtigung des Auslieferungsverkehrs mit den west- und osteuropaischen Staaten (1994); von Bubnoff (note 1), at pp. 8 et seq.; T. Stein, Extradition, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Inst.8 (1985), pp. 222 et seq.; Shearer (note 1), at pp. 22 et seq. 57
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state where the suspect accidentally may have been arrested. In particular, the problems of taking evidence speak in favor of conducting proceedings in the state where the crime occurred. Even if the state where the criminal act was committed does not want to prosecute the case, there may be still reasons for extraditing a suspect. The state of origin, i.e., the state that by nationality has jurisdiction over the suspect, still may be in a better position to prosecute than the state where the suspect has been found. This is most evident where the state on whose territory the suspect has sought refuge has no basis of criminal jurisdiction, as happens quite often in Anglo-Saxon countries with foreign criminals. A simple argument of retributive justice may be argued in these cases in favor of extradition. What are the effects of nationality on extradition? Nationality is not a primary criterion used in extradition decisions. There are two main categories of questions that have to be assessed by the competent organs of a state when an application for extradition has been filed: Does a sufficient basis of criminal jurisdiction exist (and a sufficient degree of suspicion that the person in question has committed the act attributed to him) and, second, does the state asking for extradition offer sufficient guarantees for fair judicial proceedings? Both blocks of questions mainly involve problems other than nationality.3 I would like to begin with the second block of questions - the problem of fair treatment by the judiciary of the requesting state. This mainly involves an assessment of the human rights situation in the country concerned, with a particular focus on the state of the judiciary. A well-founded fear of political persecution, a grave risk that the person to be extradited will be subjected to torture, the likelihood that he will be punished with the death penalty - all these are arguments for rejecting extradition. The death penalty in particular creates problems. Criminals who have committed a capital crime have a great incentive to flee states like the United States where they are threatened with the death penalty. Often the state of refuge will not extradite them - due its objections to the death penalty; even if the state of refuge will have to prosecute and punish the crime committed in the other state, imprisonment will be seen by most people as preferable. The implicit incentive will lead to some sort of a "movement of criminals," which will create problems for both states. Mexico is experiencing such a problem in its relations with the United States. This problem, however, has nothing to do with dual nationality. As long as one finds such enormous discrepancies in value judgments concerning the death penality just punishment for the one side, inhuman treatment for the other - the problem will not be easily resolved. Prima facie, the nationality of the accused does not play any role in the assessment required here. There is one exception, however. The extradition rules of most of the continental European states are based on a concept deeply rooted in historical traditions of personal loyalty and protection - the idea that a state may not extradite 3
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its own nationals to another state for prosecution.4 There are reasons to assume that such a concept derives from medieval notions of a personal bond of allegiance with a synallagmatic quality: the national owes his state personal loyalty, the state owes its national personal protection. Often codified in the constitution, or else deeply entrenched in statutory law, the prohibition to extradite one's own nationals creates a certain obstacle to an optimal allocation of criminal jurisdiction.5 The traditional prohibition may force a state to prosecute a national for an act committed in a country far away from the place of criminal proceedings, with all the practical problems arising out of such long-distance proceedings. What happens if the accused is a national not only of the requested state, but a dual national permanently residing in the requesting state, perhaps possessing also the nationality of the requesting state? The theoretical concept of "effective nationality" would give an argument for extradition. The practice of the states that observe a prohibition on the extradition of their own nationals, however, is clear and unambiguous in that regard: for the requested state the dual national continues to be a national, which means that he may not be extradited.6 The other nationality is not taken in perspective; the dual national is treated simply as a national, with a blind eye toward all other nationalities.7 Questions of the dominant or effective nationality have never been raised internationally in cases of extradition, it seems.8 The problems resulting from such an approach are evident. Every offender who has committed a crime and is not extradited will create a problem. Not prosecuting him would mean creating some sort of safe haven for criminals. But prosecuting him for a crime committed far away will cause enormous difficulties and may cost huge amounts of money, with a still higher risk than in national cases that the accused may be found not guilty because of a lack of evidence. Large scale phenomena of dual nationality will aggravate the problem, because acceptance of dual nationality will mean that there are growing communities of nationals living abroad in their second country of nationality. One could use this as an argument against dual nationality. One must bear in mind, however, that dual nationality is only a part of the problem. The same problem arises with mono-nationals living abroad. A more convincing and effective solution, one could argue, thus lies in another direction and should solve the entire problem. The best solution would be to abolish the legal prohibition to extradite one's own nationals. Practitioners of judicial cooperation in criminal matters seem to have a tendency toward that solution, because it would be the only move to cope with the See Shearer (note 1), at pp. 102 et seq. See M. Plachta, (Non-)Extradition of Nationals: A Never Ending Story?, 13 Emory Int'l. Law Rev. (1999), pp. 77 et seq.; in addition, see also Loos (note 2), at pp. 52 et seq.; Shearer (note 1), at pp. 118 et seq. See Shearer (note 1), at p. 131. For the legal situation under German law, see Lagodny, para. 17 et seq. to § 2 IRG, in: Schomburg/Lagodny (note 1); Loos (note 2), at pp. 51 et seq.; von Bubnoff (note 1), at pp. 58-59. See Shearer (note 1), at p. 131. 59
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problem comprehensively. National courts would then still have to examine whether the conditions in the other state allow extradition and whether there are really grounds of judicial propriety that speak in favor of an extradition. In most cases of fugitive offenders, however, including those involving the requested state's own nationals, extradition would be the most proper solution. The judiciary of the state where the crime was committed has the most interest in prosecuting the case and is best suited to bring a criminal proceeding to a successful result. The situation is completely different if states, like the United States and the United Kingdom, also extradite their own nationals (on the basis of reciprocity). The question of dual nationality here tends to become irrelevant, although on other grounds. The arguments usually weighed for and against extradition will not be arguments of nationality (including the argument of effective nationality), but instead arguments of judicial propriety, such as the evidentiary difficulties encountered by a prosecution for offenses committed abroad. Another perspective prevails when states are dealing with the question of a sufficient basis for criminal jurisdiction. I will leave out here all the specificities of the requirements of double criminality, of the rule of speciality, etc., and will concentrate on the basic question of the bond of criminal jurisdiction.9 If criminal jurisdiction is based on territorial jurisdiction over the place where the crime was committed, which might be the most frequent case, nationality is not relevant at all, except for the case discussed above (the accused is a national of the requested state, and that state refuses to extradite its own nationals). The same is true if criminal jurisdiction is based on the principle of universality or on the protected interest principle, as in the case of espionage. Problems might arise under the latter principle with the requirement of double criminality; nationality of the accused, however, will not create any serious problem. The situation might become different if criminal jurisdiction is based upon the bond of personal jurisdiction. If the principle of active personality, i.e., the nationality of the offender, is used as the relevant basis, competing requests of the various states of nationality might hypothetically give rise to problems. Admittedly, the case is rather academic. Nevertheless, with growing numbers of dual nationals, it could occur one day. The principles governing the decision by the executive to grant extradition are flexible enough, however, to cope with the resulting problems. A request for extradition in absence of an extradition treaty leaves a large degree of discretion to the requested state anyway. The government may balance the conflicting interests, with a certain priority usually given to arguments of judicial propriety, but with attention also to personal circumstances of the accused. If two states of nationality request extradition, priority usually would be given to the state of effective nationality, since the personal links (family bonds, friends, social environment) would Concerning the various principles on which criminal jurisdiction may be based, see D. Oehler, Criminal Law, International, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Inst. 9 (1986), pp. 52 et seq.
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speak in favor of the state where the accused has had his or her permanent residence. But other factors might lead to another decision. A general conclusion thus is difficult, although one point should be borne in mind here: deciding between competing requests by two states of nationality of the offender would create problems no different from deciding between other competing requests, e.g., a request based on the principle of territoriality and a request based on the principle of active personality. Competing requests are a routine part of the business, and it is difficult to give any general rule in this regard. The same is true even if the basis of the request is a treaty of extradition. Most bilateral treaties contain no specific clauses for cases of competing requests. But even the European Convention on Extradition of 13 Dec. 1957, which in its art. 17 has provided a clause on conflicting requests, in essence leaves the decision over priorities to the discretion of the requested state: "If extradition is required by more than one State, either for the same offence or for different offences, the requested Party shall make its decision having regard to all the circumstances and especially the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person claimed and the possibility of subsequent extradition to another State." Nationality here figures as only one criterion in a series of other criteria. A comparable problem arises if there are two requests based on the principle of passive personality - i.e., the nationality of the victim of the crime. For a long time this principle remained disputed,10 but recent state practice - including the various requests of European states to extradite General Pinochet - seems to demonstrate a widespread acceptance of it nowadays.11 If more than one state founds a request for extradition on personal jurisdiction concerning the victims, criteria for deciding on priority of requests become difficult. The usual case of conflicting requests, as in the Pinochet case, will be linked to the existence of victims with different nationalities. The case of one or more victims having dual nationality with both states of nationality requesting extradition seems to be rather academic, although possible in principle. The difficulties in choosing between the various requests, however, will not differ from other cases of conflicting requests based on passive personality. The only real problem that has already arisen in practice - again in the Pinochet case - is the conflict which may evolve between the state where the acts were committed, and which is also the state of effective nationality of the victims holding dual nationality, and the other state whose nationality the victims possessed. If the state where the crime was committed has decreed an amnesty, for any political reasons whatsoever, it will protest against prosecution of the offender by a third state basing its jurisdiction on a purely formal or ineffective nationality. Personal jurisdiction based on passive personality tends to override in these cases the primary responsibility of the territorial See Oehler (note 9), at p. 53. See in this regard K. Ambos, Der Fall Pinochet und das anwendbare Recht, Juristenzeitung 54 (1999), pp. 16 et seq.
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state where offenders and victims resided and where the acts were committed. State practice, however, seems to be in a process of change and to accept in principle claims of states like Spain and Switzerland, which in the Pinochet case based its jurisdiction purely on passive personality arguments concerning mainly victims who also held Chilean nationality. As in the case of non-extradition of nationals, there seems to exist a tendency in international law to accept more and more claims of criminal jurisdiction based on nationality, even in cases of dual nationality where the relevant nationality was not the effective one. B. Transfer of Sentenced Persons and Execution of Foreign Judgments Slightly different problems may arise with requests for the transfer of sentenced persons.12 If the offender has fled during judicial proceedings or after sentencing, the state where the sentence has been passed may request the transfer of the sentenced person in order to execute the sentence. The authorities of the state where an offender has been sentenced may also request that his state of origin (the state whose nationality the sentenced person possesses) or the state where he used to have his permanent residence execute the sentence. The German Law on International Assistance in Criminal Matters of 198213 allows such a transfer, even if there is no contractual obligation towards the requesting state, and it allows such a transfer even for Germans having their permanent residence in the other state requested for transfer.14 Various bilateral treaties on cooperation in criminal matters provide for such a transfer, and in the framework of the Council of Europe states have even concluded a special convention on these issues (Convention on the Transfer of Sentenced Persons of 1983).15 The main problem concerning dual nationality which seems to arise in practice is the case that an offender possesses the nationality of the requesting as well as of the requested state. According to national rules on extradition in a series of states, a national may not be transferred to another state where he has been sentenced.16 The legal situation is different when the prisoner wants the transfer to another state himself. This will happen mainly when he was sentenced in a state to which he has few social connections and when he wants a transfer to the state where he used to live, where his family and social contacts are centered. The As a comprehensive study on this field, see S. Weber, Uberstellung in den Heimatstaat: ein internationales Konzept wider den Strafvollzug in der Fremde; zugleich ein Beitrag zum Recht der internationalen Vollstreckungshilfe in Strafsachen (1997). BGB1. 1982 I 2071; for an English translation of the statute, see Schomburg/Lagodny (note 1), at pp. 395 et seq. See Art. 71 of the Law on International Assistance in Criminal Matters and the commentary to this provision in Schomburg/Lagodny (note 1), at pp. 338 et seq.; see also von Bubnoff (note 1), at pp. 104-105. ETS No. 112; reprinted (with a commentary to its provisions) in Schomburg/Lagodny (note 1), at pp. 597 et seq. That this rule applies also to requests to transfer a sentenced person is assumed in German legal doctrine. See von Bubnoff (note 1), at p. 105.
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(European) Convention on the Transfer of Sentenced Persons provides only for the condition that the person to be transferred possesses the nationality of the administering state, i.e., the state where the sentence shall be finally executed. The Convention does not exclude that a dual national may be transferred from the one state where he was sentenced (and the nationality of which he possesses) to the other state of which he is a national.17 Even under German law such a transfer is not precluded. The same is true the other way round. The state requested to receive the sentenced person perceives him as a national, and avoids cognizance of his other nationality. For both legal orders, only the nationality linking the sentenced person to the administering state seems to be relevant in these cases. Since even under the conventional provisions the decision to grant the transfer remains in the discretion of both the sentencing state and the administering state, it is difficult to sort out the effect that nationality as such has on the decisions. There are good arguments for assuming that other criteria play a much more important role. Questions of administrative and political propriety will probably dominate the decision-making much more than general concepts such as nationality. Administrative propriety as well as the personal circumstances and the chances of resocialization will usually speak in favor of execution of the sentence in the state of effective nationality. It is difficult to gain a clear idea concerning state practice in these matters, however. C. Other Forms of Judicial Cooperation in Criminal Matters The other forms of judicial cooperation in criminal matters seem to create no serious problems. Because nationality of the accused is not a criterion in determining requests for cooperation in the gathering of evidence, the transmittal of information or evidentiary material, and the service of documents, it is difficult to imagine that dual nationality could create additional obstacles in the already rather burdensome business of granting judicial cooperation. The common preconditions for the granting of judicial cooperation - reciprocity, double criminality, specificity - give no point of attachment to the invention of further obstacles in such cooperation. Only the ordre public clause could be used in cases of dual nationals to refuse judicial cooperation - if the dual national has the nationality of the requested state and could not be extradited. But the requested state would then have to examine whether it should not prosecute the offender under its own criminal law.
III. JUDICIAL COOPERATION IN CIVIL MATTERS A. Gathering and Transmittal of Evidentiary Material An analogous situation exists with the various forms of judicial cooperation in civil matters, mostly exercised for the purpose of assisting the other state in conducting This is explicitly stated in the memorandum of the German Government annexed to the draft statute preparing ratification of the Convention. See Schomburg/Lagodny (note 1), at p. 611. 63
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its civil proceedings in an orderly manner.18 States often have to provide other states with assistance in the taking of evidence, including the hearing of witnesses, experts, and parties, the taking of oaths, the production of documents, and in on-the-spot missions by judicial organs, etc. Nationality is not a relevant criterion in these procedures of judicial cooperation, because the cooperation is linked to certain procedural requirements, but not to personal jurisdiction over the parties concerned. Admittedly, the requesting state must have some sort of a plausible link of jurisdiction to the case, in order to establish an international competence for adjudication. But usually that is not a serious point in dispute, because the criteria of attribution used to determine a basis of jurisdiction vary to a considerable degree and grant a certain flexibility to the states concerned. B. Execution of Foreign Judgments With regard to the most important case of judicial cooperation in civil matters, the execution of foreign judgments, however, the effects of nationality may lead to serious problems in cases of dual nationality. Usually, nationality of the parties is not a relevant criterion in deciding upon the recognition and execution of a foreign judgment. There is some review to determine whether the judgment was taken by a competent organ and whether the standards of a fair trial have been respected, but nationality as such does not play any serious role in these deliberations.19 One exception exists, however, which is less a question of procedural rules of judicial cooperation than of the substantive legal rules applicable to cases with international aspects. In various forms of decisions upon questions of personal status, in particular in family law and inheritance matters, the common rules of conflict of law tend to take nationality as the decisive factor in determining the applicable law.20 1. Marriage and divorce This reliance on nationality usually prevails in questions of marriage. Initially the conditions which must be fulfilled in order to enter into a marriage usually are linked to the nationality of the individual person who wants to marry (personal statute).21 If there is a ground of hindrance in this law of origin, he may not marry, See the survey of these forms of legal cooperation given by R. Geiger, Legal Assistance Between States in Civil Matters, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Inst.9 (1986), at pp. 243 et seq. For the problems of judicial cooperation in civil matters, see the fundamental work of B. Ristau, International Judicial Assistance - Civil and Commercial (1984). See N. Dethloff, Internationalprivatrechtliche Folgen der Integration von Auslanadern durch eine Reform des Staatsangehorigkeitsrechts, in: U. Davy (ed.), Politische Integration der auslandischen Wohnbevolkerung (1999), P. 188, at pp. 189 et seq. See, e.g., Art. 13 para.l of the Introductory Law to the German Civil Code (EGBGB). In cases of dual or multiple nationality, Art. 5 EGBGB applies: the personal statute then is the law to which the person in question has the closest link.
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unless the relevant rules of private international law provide for an exception. German law, for example, allows marriage nevertheless if the candidate for marriage has his habitual residence in Germany or if he is German citizen. A German dual national (even if his habitual residence lies in the other country of nationality) thus may marry in Germany, notwithstanding the grounds of hindrance following from his usual personal statute. As to the legal regime concerning the consequences of marriage, including the rules governing the property of the spouses, most often the personal statute is taken as the law governing the marriage - i.e., the legal regime of the state of origin of the couple, in the sense of the state whose nationality the couple possesses.22 If both spouses do not possess the same nationality, the law of their state of habitual residence may become decisive, or the state to which both together have the closest link.23 If one is a dual national and the other also possesses one of these nationalities, German law expressly allows the spouses to choose this law as the relevant one, even if it is not the personal statute of the dual national in the usual sense of German law, i.e., the law of the state of nationality to which the person has the closest link. For the regime governing their property, they usually are also allowed to choose another legal order, on condition that there is some sort of a genuine link, such as a bond of nationality.24 Dual nationality here enlarges the range of options in the choice of law. The legal order governing divorce usually derives from the general statute governing the marriage and its consequences, i.e., in common cases of mono-national marriages the personal statute of both spouses.25 The legal regime governing maintenance obligations is usually the legal order of the place of habitual residence of the maintenance creditor. If both maintenance creditor and debtor have a common nationality, German law in addition allows recourse to the law of shared nationality.26 The decisive aspect governing the selection of applicable law in these cases of personal status usually is the question with which legal order the respective persons have the closest link.27 Nationality usually will serve as an objective indicator for this "narrow link," an indicator that mirrors the legal order to which the person in question is connected by birth, socialization, biography, and cultural habits. Although this technique of using nationality as an indicator of a genuine link might become doubtful with immigrant couples of the third, fourth or later generation who have been born, brought up, socialized, and integrated in the host country, it serves its purpose in the ordinary case of a mono-national couple living abroad. See, e.g., Art. 14 para.l German EGBGB. See in this sense, e.g., Art. 14 para.l nos.2 and 3 German EGBGB. See, as an example, Art. 15 para. 2 of the German EGBGB. See Art. 17 para.l German EGBGB. See Art. 18 para.l German EGBGB. To the concept of "narrow link" and its relationship with nationality, see H.J. Sonnenberger, Anerkennung der Staatsangehorigkeit und effektive Staatsangehorigkeit naturlicher Personen im Volkerrecht und im internationalen Privatrecht, in: Berichte der Deutschen Gesellschaft fur Volkerrecht Vol. 29 (1988), p. 9, at pp. 11 et seq.
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Difficulties begin, however, with couples involving more than one nationality. Additional factors, like the habitual residence of the couple or the place where they entered into marriage, will have to be brought into play. The case becomes utterly difficult if one or both spouses are dual nationals. Then one must sort out which nationality could serve as an indicator of a "narrow link."28 The rules on conflict of law here tend to use a concept of effective nationality as the decisive point of attribution,29 although "effective nationality" here means something different than it traditionally meant in general public international law. Traditionally the "effectiveness" inquiry asks whether there exists any genuine link between the state of nationality and the person in question, and any international legal effect of the bond of nationality is denied if there is no genuine link. In the present context, however, "effectiveness" is centered upon asking which of two links - both of which might be genuine in the traditional sense - is narrower, that is, more closely connected to the biography and personality of the person. Matters become really difficult if one of the nationalities is the nationality of the state whose courts shall decide upon the case.30 Traditionally, German courts in these cases forgot about effective nationality, assuming that the German nationality of a citizen coming to a German court is always stronger than any other nationality that person would hold.31 Most of the courts of the other continental European states followed an analogous doctrine.32 Behind such doctrine there undoubtedly lies a traditional concept of nationality as an exclusive bond of allegiance. The German Supreme Court in 1979 reversed this doctrine and shifted its emphasis to the underlying idea of a "narrow link."33 Even in cases of German-foreign dual nationals, the decisive indicator of the narrow link should be the effective nationality, i.e., the nationality which dominates biography, cultural patterns, and identity of the person concerned. In effect, even with dual nationals having German citizenship as one of their nationalities, a foreign nationality thus could provide the personal statute. The legislator overruled the Supreme Court, however, with the reform of German private international law in the 1980s. Article 5 para. 1 of the Introductory Law to the German Civil Code (EGBGB) in its new version declares again the German nationality to be the only and decisive factor for deciding upon the applicable law.34 Cf. Sonnenberger (note 24), at pp. 18 et seq. Cf. Sonnenberger (note 24), at pp. 18 et seq. See the debate in German doctrine on the consequences of dual nationality for conflict of law rules - cf. Nomer, JZ 1993, pp. 1142 et seq.; Martiny, JZ 1993, pp. 1145 et seq.; Kilic, StAZ 1994, pp. 77 et seq.; Dethloff, JZ 1995, pp. 64 et seq. See H.-P. Mansel, Personalstatut, Staatsangehorigkeit und Effektivitat (1987), at para. 112; Sonnenberger (note 24), at p. 19. For the problems resulting from such a narrow perspective, see Mansel (note 29), at para. 232. Decision of 2 June 1979, Official Collection of the Decisions of the Supreme Court - Civil Division (BGHZ) Vol. 75, p. 32, at pp. 38 et seq. For the background of this legislative move, see Sonnenberger (note 24), at pp. 19-20; A. Heldrich, comments to Art. 5 EGBGB, para. 3, in: Palandt, Burgerliches Gesetzbuch (Commentary to the German Civil Code) (58th ed. 1999).
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The move was, at least in part, motivated by constitutional arguments, although it is doubtful whether these arguments are really convincing;35 the official reasoning stressed arguments of clarity of the law and of practicability. The consequences of such a move are obvious: Germany has fallen back into the problematic tradition which still governs the legal situation of most continental European states. Concerning dual nationals with German nationality, German courts always apply German law in deciding questions of personal status.36 Dual nationals thus are reduced, in a legal perspective, as in the context of extradition, to the status of an ordinary national of the state exercising jurisdiction. The other nationality is not taken into consideration for the legal evaluation.37 As a result, this means some claim of exclusive jurisdiction, since the state claims that the person in question is subjected only to its own law. Germany, along with a series of other European states like Italy, Spain, Portugal, Turkey, and Greece,38 upholds this claim even if the dual national has changed his residence to the other state of nationality, which again will tend to perceive him as purely its own national. This is not a problem in itself, but may lead to disturbing (and disruptive) consequences. If any of his states of nationality treats him like an ordinary mononational, the choice of the forum becomes decisive, and will implicitly decide also upon the conflict of laws. Because the substantive legal rules in questions of marriage and divorce differ greatly, with international harmonization only in a fledgling condition, such practice inevitably leads to potentially conflicting decisions.39 Overlapping jurisdiction of courts of both states concerned will exist anyway. International rules of civil procedure concerning competence refer to nationality again, without selecting an effective nationality. The relevant German provisions, for example, grant competence to adjudicate in matters of marriage and divorce if one of the spouses is a German citizen, notwithstanding any other nationality of the German spouse or the other one.40 A spouse having German citizenship thus may file suit before a German court even if his habitual residence has been for a long time outside Germany.41 An additional foreign citizenship is not taken into consideration according to the traditional jurisprudence of German courts.42 One may illustrate the results of such an approach as follows. One partner of a See the convincing critique of this line of argument developed by Mansel (note 29), at paras. 52, 239. See Dethloff (note 20), at pp. 191 et seq. See also N. Dethloff, Doppelstaatsangehorigkeit und Internationales Privatrecht, Juristen-Zeitung 1995, pp. 64 et seq. See Art. 19 no. 2 sentence 2 of the Italian Statute on International Private Law; Art. 9 no. 9 para. 2 of the Spanish Civil Code; Art. 27 of the Portuguese Law on Citizenship of 3 Oct. 1981; Art. 4 lit.b of the Turkish statue on International Private Law; Art. 31 sentence 1 of the Greek Civil Code. See Dethloff (note 20), at pp. 191-196. § 606a para. 1 no. 1 German Code of Civil Procedure (ZPO). See H. Thomas / H. Putzo, ZPO-Kommentar (19th ed. 1998), Comments to § 606a ZPO, para. 2. See Supreme Court of Bavaria (BayObLG), FamRZ 1997, p. 959; a contrary conclusion has come, however, from the Supreme Court of Berlin (Kammergericht), FamRZ 1998, p. 440; cf. also the critical observations to that debate by Henrich, IPRax 1998, pp. 248 et seq. 67
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bi- or multi-national marriage may file a claim of divorce in the one state, calculating that the law thus chosen is much more favorable for him than the other law that might apply if the suit were filed in the other state of nationality. The other partner then might file a claim in the court of the other state of nationality, since the law applicable in these proceedings is preferable from her perspective. The different courts will take decisions based on their respective national law, subjecting the same case to differing legal regimes. As an outcome, conflicting decisions of the courts of the various countries of origin will occur in quite a number of cases.43 The consequences are problematic. To begin with, consider the conclusion of marriages. If one legal order subjects a marriage to a different set of rules than another legal order, grounds of hindrance may exist in one legal order, but not in the other. If the marriage is nevertheless concluded, it is invalid for the one legal order, but valid for the other. What arises here is the phenomenon of "lame marriages," which are recognized only in one state, but not in the other state to which the couple is legally linked.44 Analogous problems may occur with the general legal regime governing the marriage. The possibility to act in the name of the couple, for example, may be subject to different rules. Quite dramatic are the differences in the matrimonial regime concerning the property of the spouses. If each state of nationality subjects the marriage to its own laws, disparate judgments about the validity of contracts concluded by spouses or the attribution of property may occur.45 The courts of the other state of nationality will tend not to recognize the judicial decisions coming from courts abroad, at least if they contradict decisions of their own courts.46 The regime of divorce also differs considerably among European states. Some states even do not know the possibility of divorce; others subject it to strict conditions, while still other states are rather generous in this regard. Huge discrepancies exist also in the consequences of divorce, including the division of matrimonial property, the obligations of maintenance, etc.47 The substantive outcome, which depends on the set of substantive rules to be applied to the case, thus will depend upon the court where the case is decided. The choice of the forum in these cases is decisive for the outcome. To take again cases of marriage law as an example: if a couple of German-Turkish dual nationals litigates questions of marriage law or divorce in a German court, German law will find application. If the couple submits the case to a Turkish court, Turkish law will be applied. Even more strikingly, German courts will not recognize and execute the Turkish decision, because they assume the case has to be decided purely under German law, whereas Turkish courts will not recognize the German decision. An incentive for forum shopping thus arises, discriminating against the weaker See Dethloff (note 20), at pp. 190 et seq. On this problem, see Dethloff (note 20), at p. 191. See also Dethloff (note 20), at p. 192. As to the problems resulting from such an approach, see Dethloff (note 20), at pp. 191-196. See Dethloff (note 20), at pp. 193 et seq. 68
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side, because the well-informed party may quickly choose the place of adjudication most favorable to his or her interests.48 This is not a question of judicial cooperation as such, as was already mentioned, but a question of the applicable rules of private international law. The problems resulting from these conflicting claims of exclusive jurisdiction nevertheless will lead to serious problems in judicial cooperation. The parties may either reach conflicting decisions in the various states of nationality, without any chance of recognition and execution in the other state, or they manage to block the adverse side's attempt at adjuducation, by suing first in the court more favorable to them. Both scenarios are unsatisfactory means of resolving conflicts. Judicial cooperation here comes into play again. The judicial decision in one state will serve its purpose only if it is recognized and enforced in the other state. The other state, however, will tend not to recognize foreign decisions that contradict the results of decisions of its own courts. Some basic sort of harmonization is needed here. A series of multilateral conventions devoted to the issue of recognition and enforcement of judicial decisions has taken up the problem, trying to find a solution to the intractable problems just described. These conventions usually regulate the question of competence and jurisdiction of courts, and do not directly attempt to harmonize substantive rules. In determining which court will be competent, however, they delimit the reach of the various legal orders. The first one of these international treaties is the Hague Convention on the Conclusion of Marriages of 12 June 1902. It provides in Art. 1 that the right to enter into a marriage is governed by the law to which the person "belongs" - which means the state whose nationality he possesses. Dual nationality here multiplies the competent fora which may be used. The (newer) Hague Convention on the Conclusion and Recognition of the Validity of Marriages of 14 March 1978, which should replace the old Hague Convention of 1902, has not yet entered into force. The other Hague Convention from the turn of the century, the Convention on the Results of Marriage of 17 July 1905, was terminated by Germany because its basic rule - that the marriage statute should be the personal statute of the husband - was evidently unconstitutional.49 A more recent attempt at harmonizing recognition (with its implicit preconditions) is the Hague Convention on the Recognition of Divorces of 1 June 1970. The Convention refers again to the personal statute of both spouses as one of the bases of jurisdiction. In the framework of the European Community the member states concluded a parallel agreement in 1998, the Convention on the Jurisdiction and the Recognition and Execution of Decisions in Matters of Marriage.50 This Convention, which has not yet entered into force, has now been superseded by EC Regulation No. 1347/2000 of 29 May 2000.51 The regulation, one of the first examples of See Dethloff (note 20), at pp. 196-197. See A. Heldrich, comments to Art. 15 EGBGB, Annex, para.l, in: Palandt, Burgerliches Gesetzbuch (Commentary to the German Civil Code) (58th ed. 1999). OJ C 221 of 16 July 1998, p. 1. OJ L 160 of 30 June 2000, p. 19. 69
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secondary community legislation on the basis of Art. 65 EC Treaty in the field of private international law, follows the same approach as the Luxembourg Convention of 1988. Its scope of application extends to matters of divorce, separation without divorce, and declaration of invalidity of a marriage, as well as matters of parental custody for common children resulting from the marriage. Courts of a member state are competent, according to Art. 2 of Regulation 1347/2000, to adjudicate upon matters of divorce, separation, and invalidity if either both spouses or (under certain additional conditions) one spouse have their habitual residence inside that member state. As an alternative basis of competence, the same provision refers to the case that both spouses are nationals of the state in question. This means that dual nationality, in certain situations, is again not taken into consideration. The nationality which a dual national spouse shares with the other spouse may be less effective than his other nationality, but for the purposes of international judicial competence under the Regulation, effectiveness does not count. The dual national is treated as if he were a simple mono-national. And if both spouses have the same dual nationality, they are in both states of nationality treated like mono-nationals. If both states have a recognized basis of jurisdiction, the risk of conflicting court decisions based on divergent rules of national law remains open. Art. 15 para. l(c) and (d) of the Regulation in a way takes this result as a possibility to the extent that it provides for nonrecognition of judgments of other member states in the case that they are inconsistent with judgments taken in the same matter by courts of the forum state or third member states. The parallelism of court decisions that the regulation attempts to create is thus disturbed in these cases, because there may be two incompatible decisions each non-recognizable in the other member state which will mean that the legal status of the persons concerned is governed by one decision in one state and by another decision in the second state. Such odd cases may occur also outside the scope of dual nationality, but dual nationality heightens considerably the risk of such unwanted results. Dual nationality proves in these cases to be a potentially disturbing factor in the harmonization of judicial practice. 2. Maintenance obligations Comparable problems might arise with maintenance obligations. The substantive rules on maintenance still differ greatly among European states. All the more important it should be to introduce some element of consonance in international judicial practice. Private international law at first tries this by selecting as the appropriate legal order governing maintenance obligations the legal order of the state where the maintenance creditor has his habitual residence. As a surrogate source, German private international law also refers to the legal order of the state whose nationality both parties possess.52 If both the maintenance creditor and debtor are Germans and at least the maintenance debtor lives in Germany, German law will have to be 52
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The same set of rules underlies the Hague Convention on the Law Applicable to Maintenance Obligations of 2 Oct. 1973, Art. 4 and 5.
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applied, notwithstanding any other link to a second or third legal order.53 A comparable rule can be found in the Hague Convention on the Law Applicable to Maintenance Obligations towards Children of 24 Oct. 1956, which in general refers to habitual residence as the basic criterion for selecting the applicable law, but also recognizes as an exceptional criterion of attribution the common nationality of the child and the maintenance debtor. Nationality here again is taken as an indication of a narrow or effective link, although this does not always track reality in cases of dual nationality. Dual nationals are thus treated as ordinary Germans, even if their effective nationality is not the German one. This applies even if the "marriage statute" was a foreign law and the marriage was dissolved under the other legal order. (The maintenance statute in matters of divorce, however, usually follows the divorce statute.54) The concurrent jurisdiction of courts of both states of nationality (for Germany, § 606a Code of Civil Procedure grants a jurisdictional basis if one of the parties is German) and the potentially concurrent application of the different states' legislation gives a clear incentive for forum shopping. Any well-counseled client will carefully choose the forum in which to file his lawsuit.55 Because judicial decisions in maintenance matters are usually recognized, the use of a foreign forum (foreign to the residence of the maintenance debtor) will not create insurmountable obstacles.56 Judicial decisions concerning maintenance obligations are covered by the general regime of the Brussels Convention on the Jurisdiction and Enforcement of Judicial Decisions in Civil and Commercial Matters of 27 Sept. 1968. With the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations of 2 Oct. 1973, there exists also a special international agreement harmonizing the criteria of jurisdiction and facilitating the enforcement of foreign judgments. Courts of a state usually are seen to have jurisdiction, according to Art. 7 of the Convention, if the parties (or the maintenance creditor or debtor alone, if certain additional prerequisites are fulfilled) have their habitual residence in the forum state. As an additional basis of jurisdiction, Art. 7 para. 2 recognizes the case that both parties are nationals of the forum state (with the exception of maintenance obligations deriving from divorce, where usually proceedings on divorce and on maintenance obligations are carried through in a combined proceeding). A state may refuse to recognize a foreign judgment, however, if the foreign decision is incompatible with a decision earlier rendered between the same parties and having the same purpose.57 Here again, jurisdiction is not really exclusive, but to a certain degree concurrent. Already with the various criteria determining habitual residence, more than one forum may have jurisdiction. This is even more true for the additional Art. 18 para. 5 of the Introductory Law to the German Civil Code (EGBGB). See also Art. 18 para. 4 of the Introductory Law to the German Civil Code (EGBGB). As to the problem of forum shopping, see Dethloff (note 20), at pp. 1194-195. See also Dethloff, JZ 1996, p. 64, at pp. 69-70. Art. 5 no. 4 of the Hague Convention on the Recognition of Decisions Relating to Maintenance Obligations. 71
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basis of jurisdiction, the joint nationality clause. A couple with the same nationality might live in a second country. Habitual residence and nationality then would give two states claims of jurisdiction in such a common case. The problem becomes even more complex with dual nationality. The Hague Convention cannot avoid this undesirable multiplication of jurisdiction. What it tries instead is to cope with the resulting problems of potentially conflicting decisions by granting states the right not to recognize the foreign judgment in these cases. This might be a way out of the dilemma under certain conditions, but it does not really solve the problem. The contradiction in judicial outcome remains, and the maintenance debtor accordingly may be liable to different amounts of maintenance in different orders. In practice, the decision taken in the country where the maintenance debtor lives will gain the upper hand, because it is the only judicial decision enforceable in practical terms. 3. Parental custody For matters of parental custody, private international law rules usually declare the law of the state where the child has his or her habitual residence to be the relevant set of legal rules. Art. 21 of the Introductory Law to the German Civil Code (EGBGB) declares this rule with complete clarity. The nationality of the child or the parents does not play a role here. Art. 3 of the Hague Convention on the Jurisdiction of Authorities and the Applicable Law Relating to the Protection of Minors of 5 Oct. 1961 confirms this rule as the applicable international standard. Art. 4 of the Convention, however, grants the authorities of the state to which the child belongs in terms of nationality a certain degree of concurrent jurisdiction to take measures protecting the child. The relation between this (subsidiary) rule and the basic referral to the law of the state of habitual residence is disputed. Art. 4 is mostly understood as an exceptional rule for cases where the state of habitual residence does not want (or is incapable) to grant effective protection. Art. 5 of the Minors Convention strengthens the role of the authorities of the state of residence by providing that the measures taken by these authorities remain in force even in case of change of residence, as long as the authorities of the new state of residence have not taken measures replacing the old ones. Before abrogating the measures of the former state of residence, the authorities of the new state of residence shall give notice to them of the planned measures. In case the former state of residence is also the state of nationality to which the child belongs, the Convention provides that the measures taken by its authorities are not affected by a change of residence. These provisions do not completely solve the problems of forced change of residence. Child abduction to foreign countries, mostly done by one parent against the will of the other, is occurring on a significant scale. Because the usual rules of private international law and private international procedure do not solve the problems of child abduction adequately, the international community has concluded a special agreement on this matter, the Hague Convention on the Civil Aspects of International 72
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Child Abduction of 25 Oct. 1980. Again, this convention is an instrument of judicial cooperation, not of private international law. It provides for immediate return of a child in any case of a breach of rights of custody "under the law of the state in which the child was habitually resident immediately before the removal." There is no control of questions of legal substance; if a forced removal constitutes a child abduction in the sense of Art. 3, the authorities of the state of new residence have to cooperate in order to arrange the return of the child. Ongoing judicial procedures on questions of parental custody do not matter in this regard, since the transfer of a child or the refusal to return a child are deemed illegal as soon as the parental custody of somebody else is violated. Art. 3 of the Convention provides that removal or withholding of a child is illegal if it constitutes a "breach of rights of custody attributed to a person ... under the law of the state in which the child was habitually resident immediately before the removal." The regulatory set-up sounds convincing and seems adequate to fulfill the desired purpose, because it grants an unconditioned right to demand the return of the child to his or her legal custodian. Questions of child abduction nevertheless have become a hot issue and tend to burden bilateral relations.58 This is not due, however, to any consequences of dual nationality; nationality does not play, as was explained already, a significant role in that regard. The weak point of the system lies in another rule of the Convention. Art. 13 provides two grounds that can justify a refusal to return a child. The first one is not interesting here (non-exercise of parental custody at the time of removal or assent to the removal or withholding). But the second one opens up a Pandora's box that has created enormous problems in judicial practice. The return of a child may be refused, according to the rule of Art. 13(l)(b), if there exists a grave risk that the return would expose the child to physical or psychological harm. In particular the concept of a grave risk of psychological harm can easily be used in cases of fiercely struggling parents and uprooted children to keep the situation as it is, at least as soon as the abducted child has passed some time with his other parent as a consequence of the abduction and has grown accustomed to the new situation. If courts interpret this clause too generously in the interest of stabilizing the child's seemingly comfortable situation after the abduction, they obstruct the operation of the mechanism created to fight the practice of child abduction and infringe the spirit and purpose of the Convention. German courts unfortunately are among the national judiciaries that have the most problems with a literal construction of the Convention's provision and that tend to enlarge the exceptional device of Art. 13 to some sort of a general emergency exit opening a way out of the Convention. See L. Cardin, The Hague Convention on the Civil Aspects of International Child Abduction as Applied to Non-Signatory Nations: Getting to Square One, 20 Houston J. of Int'l. Law (1997), pp. 141 et seq.; J. Starr, The Global Battlefield: Culture and International Child Custody Disputes at Century's End, 15 Arizona J. of Int'l. and Comparative Law (1998), pp. 791 et seq:, J.D. Golub, The International Parental Kidnapping Crime Act of 1993: The United States Attempt to Get Our Children Back How is it Working?, 24 Brooklyn J. of Int'l. Law (1999), pp. 797 et seq.; N. Lowe, International Child Abduction: The English Experience, ICLQ 48 (1999), pp. 127 et seq.
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Bilateral disputes, like the German-U.S. dispute that has arisen in recent years, then become unavoidable. These disputes, however, have nothing to do with legal consequences of dual nationality, although it is clear that the factual background for child abduction cases lies mostly with multinational marriages. The disputes are purely the result of a judicial misconstruction of Art. 13 of the Child Abduction Convention, a misconstruction that endangers the functioning of the whole convention. 4. Inheritance matters Dual nationality does play a problematic role, however, in judicial cooperation in issues of inheritance. Private international law usually refers to the legal order of the state of which the deceased was a national, in order to decide which law should apply to a case of inheritance. This determination of the personal statute raises significant problems if the deceased was a dual or multiple national. Which nationality should count for determining the inheritance statute? The judicial organs of the states of which the deceased was a national will tend to repress the fact of dual nationality and will be tempted to treat him like an ordinary national, where the questions of inheritance are ordered according to its own national law, notwithstanding the location of the estate. If both states of nationality proceed in that way, a legal splitting of the estate occurs. The part lying in state A passes according to the inheritance law of A; the part of the estate lying in B follows the inheritance rules of B. Such a legal split-up is uncomfortable and leads to several complications. It happens also in other cases, however, because many states subject immovable property to the lex rei sitae, thus splitting the legal regime governing the estate between movable property (following the personal statute) and the immovable property (following the lex rei sitae).59 Dual nationality thus undoubtedly contributes to the complexity of transnational inheritances, but it does not create a special problem. The phenomenon of estate splitting is known anyway, and dual nationality adds only a further group of cases to that unhappy practice. 5. General observation The last category of cases is typical for the problems flowing from dual nationality in the law and practice of judicial cooperation in civil matters. Dual nationality obviously adds a further degree of complexity to the already quite complex questions of judicial cooperation. It raises additional questions in every case where the personal statute of a person involved is taken as a decisive criterion of selecting the relevant law: what are to be the criteria for selecting the governing nationality as a point of reference for determining the applicable law? National courts of a series of states still tend to perceive their own nationality as decisive, even if the person in question See A. Heldrich, comments to Art. 25 EGBGB, paras. 2 et seq. in: Palandt, Burgerliches Gesetzbuch (Commentary to the German Civil Code) (58th ed. 1999). 74
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did not live in that country and may not have close links to it, other than the legal bond of nationality. If one tries to solve the problems under such a narrow perspective, the risk of conflicting judicial decisions arises. The private international law of the various states of nationality will refer to different legal orders as adequate sources of authority. Since the substantive rules in matters of personal status are much less harmonized than the rules governing contracts, the divergence in the selection of the applicable law might easily transform itself into contradictory judgments based on very different sets of legal rules. If judicial decisions that concern the same case conflict with each other, the task of judicial cooperation and enforcement of foreign decisions becomes difficult. States will not recognize and enforce a judicial decision contradictory to a judgment taken by one of its own courts. Judicial cooperation thus becomes fragile in personal status matters involving dual nationals. Skillful players in the game of international legal relations often will be tempted to take refuge in a strategy of forum shopping. By selecting the right forum, one may predetermine the applicable law - and with some knowledge and experience, one will choose the law that is most favorable to oneself. Forum shopping is generally seen as a problem, however, since it favors the legally experienced and economically powerful actor, and disadvantages the less experienced and poorer party.60 But forum shopping can be avoided only if one either coordinates the rules on jurisdiction of national courts, as is done in a whole series of international conventions on the recognition and enforcement of foreign judgments, or harmonizes the substantive legal standards or at least the private international law rules which the legal order applies to a certain case. A harmonization of substantive standards, or at least of the rules on conflict of laws, would be desirable. Only harmonized criteria concerning the determination of the relevant legal rules would prevent conflicting decisions in such cases. These harmonized criteria could only be based on a concept of effective nationality. As long as one state negates the existence of another nationality and claims its own nationality to be the only one relevant for deciding upon the body of applicable law, and the other state similarly negates existence of the first states'nationality, states can only come to conflicting judgments over the applicable law - and as a result perhaps also to conflicting value judgments in substance. A certain harmony in judicial decision-making thus would be possible only if states would relinquish any claim that dual nationals having their nationality should be treated purely as their own nationals. States should take cognizance of dual nationality and - even more should accept that another state's nationality may sometimes be the better foundation for choosing the law to govern a question of personal status. Only such a resignation
As to the problems of forum shopping, see K. Siehr, "Forum Shopping" im internationalen Rechtsverkehr, ZfRV 25 (1984), pp. 124 et seq.; J. Kropholler, Das Unbehagen am forum shopping, in: Festschrift Firsching (1985), pp. 165 et seq. 75
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of exclusive personal jurisdiction would open up a possibility for the needed coordination in judicial decision-making in matters of personal status of dual nationals, including assured recognition and execution of judgments.
IV. CONCLUSIONS This survey of the effects of nationality in the various fields of judicial cooperation has demonstrated that questions of nationality, including questions of dual nationality, usually do not play a significant role as a source of problems. Nationality of the person concerned usually is not a relevant criterion for the decision to grant or reject a request for judicial cooperation. Judicial cooperation in criminal law as well as civil matters is based upon an open system of adjudication with largely overlapping criteria for determining the competent jurisdiction. Various states thus may have jurisdiction over the same case. The conflict of law rules of international criminal law as well as of international private law have developed a practical technique to mitigate between these potentially conflicting claims of jurisdiction and have also educated states to accept claims of jurisdiction (and adjudication outcomes) which may conflict with their own claims. Difficulties arise only in the few fields where modern states still claim some sort of exclusive jurisdiction over nationals. This is true for extradition law, where most of the continental European states do not accept that another state may prosecute their own nationals - with the consequence that they reject extradition of their nationals and, to a certain degree, also recognition of foreign judgments. Because dual nationals usually are perceived as nothing but nationals (with the other nationality being suppressed as a relevant criterion), states tend to block the jurisdiction of another state even if that state has better grounds for exercising jurisdiction (cases of effective nationality) and even if they would have reasons of practicability not to take over the judicial proceedings. The problem observed in extradition law becomes even more delicate in the cases of blocked recognition or execution of judicial decisions upon questions of personal status in civil matters (matters of marriage, divorce, maintenance obligations, child custody, inheritance). The usually harmless fact that the legislation of the various states still diverges a lot in substance here easily becomes transformed into conflicting decisions of courts from different nations as soon as dual nationality is in the game. Because dual nationals usually are perceived by their states of nationality as full (and unconditional) nationals, states tend to judge decisions based upon what they consider the wrong law as interventions by another state that should be blocked - even if the other nationality is the dominant and effective one. The existence of more than one nationality here may result in an open collision of judicial decisions which easily explodes the framework of judicial cooperation. States have attempted, with a series of international conventions on the recognition and enforcement of judicial decisions, to solve the resulting problems. That these attempts have been unsuccessful to a certain degree, at least in cases of dual nationality, is less a consequence of the enormous growth of dual nationality 76
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than a result of technical deficiencies and inconsistencies in the conventions themselves. States could solve the problems by such conventions, but they would have to relinquish any claim of an exclusive jurisdiction over nationals. The structural lesson of both fields of problems is unambiguous: states can avoid conflict over dual nationals only if they accept the fact that there exists more than one nationality in these cases. Only if the existence of the other nationalities is taken into regard and to a certain degree accepted in a structure of harmonized and coordinated adjudication will it be possible to solve the contentious cases. The basis for such a system of coordinated competences concerning dual nationals can only be the criterion of effective nationality. As the incidence of dual nationality increases, the creation of a certain priority of nationalities in cases of dual nationality, with the effective one as the active nationality, the other one as some sort of a dormant nationality, would enable states to achieve the needed harmonization. In all the other cases, the existing mechanisms for solving conflicts of jurisdiction are developed enough to absorb potential conflict between various states of nationality. In extradition cases, as in cases of cooperation on the gathering, taking, and transmittal of evidence or on the execution of judgments, states have accepted that other states exercise jurisdiction in cases that fall also in their own jurisdiction. They have developed technical criteria in order to find a common basis for the attribution of jurisdiction. Techniques of balancing conflicting interests help in containing the potential conflicts. These techniques are flexible enough to cope also with conflicts of different states claiming personal jurisdiction over the same person. Except for a few areas of conflict still remaining, dual nationals thus do not create serious problems in the sphere of judicial cooperation.
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CHAPTER 5
DUAL NATIONALITY AND MILITARY SERVICE: STRATEGY NUMBER TWO
Stephen H. Legomsky*
Dual nationality is suddenly drawing attention, largely because the world's dual national population is surging.1 Despite the swelling of their ranks, dual nationals no longer elicit the visceral fears that were common in former times. In this increasingly transnational age, where multiple loyalties are more readily acknowledged and even embraced, dual nationality has become respectable. Indeed, as other modern writers have convincingly demonstrated,2 dual nationality generates concrete benefits both for the individuals concerned and for the societies in which they live. Although dual nationality is no longer thought to engender huge problems, it does give rise to an assortment of smaller issues that require positive policy prescriptions. The problems concern military service, taxation, diplomatic and consular intervention, extradition, and transnational crime. There are at least two strategies for solving these problems. Strategy number one is to reduce the incidence of dual nationality. Strategy number two is to accept the present rules that result in dual nationality and to fix any specific problematic consequences. Because dual nationality brings positive benefits, because the problems seem either small or surmountable, and because measures to reduce the incidence of I express my deep appreciation to Yusuf Caliskan, Trisha Kelly Yukawa, and Julie Strube for their truly exceptional research assistance. I also thank Thomas Franck, Tomas Hammar, David Martin, and Gerald Neuman for their influential comments on earlier drafts; Carlos Narv'ez-Hasfura for his generous help in locating crucial Mexican laws; the German Marshall Fund and all the participants at its Mexico City, Berlin and Istanbul workshops (especially Kay Hailbronner and Rey Koslowski); and the Minerva Center for Human Rights and all the participants at its Tel Aviv workshop (especially Mala Tabory). The causes of this surge are summarized in section I below. Ibid.. David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 79-134 © 2003 Kluwer Law International. Printed in Great Britain.
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dual nationality significantly would either impose unacceptable costs or elude international agreement, this paper explores strategy number two. The paper considers one particular set of problems - those that occur when dual nationality policies collide with military service policies. Of special concern has been the dilemma faced by young male dual nationals who wish to visit family members in one of their nationality states but who fear conscription if they do so. A host of related issues have also arisen. As will be seen, these questions lend themselves to a blend of domestic and international solutions. While the discussion here is generic, emphasis is placed on the United States, Germany, and their respective migration source countries, including especially Mexico and Turkey. A few terms require explanation. In this paper, I use the words "nationality" and "citizenship" (or "nationals" and "citizens") as if they were interchangeable. Technically, they are not. Each set of terms has multiple meanings, in the legal, sociological, political, ethnological, and other spheres. Even within the legal sphere, the meaning of each of these terms varies from state to state. In some states including the United States, Mexico, and El Salvador - citizens are a subcategory of nationals, and the former typically possess voting and other political rights.3 Since none of the technical distinctions affects the military service issues with which this paper is concerned, I use the terms "nationals" and "citizens" of particular states loosely, to signify individuals who owe permanent allegiance to those states. Unless specified otherwise, the word "dual" is used equally loosely. In principle, as the next section explains, the same events that make it possible for an individual to possess exactly two nationalities also make three or more nationalities possible. Thus, "multiple" or "plural" would be technically more accurate than "dual. " This paper uses the more common terms "dual" nationals and "dual" citizens nonetheless, to encompass people who have two or more nationalities or citizenships. Section I summarizes the phenomenon of dual nationality - how it arises, why it is increasing, and what policy concerns have underlain both historical efforts to minimize dual nationality and the more modern depiction of it as benign or even ameliorative. Since these subjects have been well treated in several other writings,4 section I will be brief. The United States law defines "nationals" to include citizens and others who "owe permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22). In fact, the U.S. has very few noncitizen nationals, mainly natives of American Samoa. 8 U.S.C. §§ 1101(a)(29), 1401(1). Mexican law draws a different but analogous distinction based mainly on age and political rights. See Mexican Constitution, arts. 30, 34; see generally Carlos Narvaez-Hasfura, The Mexican Power to Expel Aliens in Light of Its International Limitations and the Dimensional Theory of Law, n. 1ll (1996) (unpublished J.S.D. dissertation, Washington University School of Law); Jorge A. Vargas, Dual Nationality for Mexicans? A Comparative Legal Analysis of the Dual Nationality Proposal and Its Eventual Political and SocioEconomic Implications, 18 Chicano-Latino L. Rev. 1, 29-40 (1996). For an analogous distinction under Salvadoran law, see Constitution Politica de la Republica de el Salvador, arts. 71, 90, < http://www.georgetown.edu/pdba/Constitutions/ElSal/elsalvador.html >. E.g., Nissim Bar-Yaacov, Dual Nationality (Frederick A. Praeger, Publisher, New York, 1961); Tomas Hammar, Democracy and the Nation State 106-24 (Avebury, Hants, U.K., 1990); T. Alexander Aleinikoff, Between Principles and Politics: The Direction of U.S. Citizenship Policy 25-40 (Carnegie 80
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Section II, the heart of the paper, considers the impact of dual nationality on military service. It explores dual nationals' eligibility for voluntary military service and for officer positions; the conscription of dual nationals; loss of one or more nationalities because of military service; and the military status of dual nationals in the event of armed hostilities between the two states.
I. THE PHENOMENON OF DUAL NATIONALITY A. How Does Dual Nationality Arise? Large-scale dual nationality is made possible by the interaction of three fundamental maxims. Maxim # 1, which is subject to some (expanding) exceptions described throughout this paper, is that each state decides who its own nationals are.5 Maxim # 2 is that, in making those decisions, a given state typically provides alternative, multiple routes to nationality.6 These alternative paths frequently confer nationality by virtue of birth in the state's territory (jus soli), by descent from one or both parents (jus sanguinis), and by naturalization. Maxim # 3 is that the rules vary from state to state.7 Thus, one way to acquire dual nationality is to be born in a jus soli state to parents who are nationals of a jus sanguinis state. Dual nationality can also result Endowment for International Peace, Washington, D.C., 1998); Thomas M. Franck, Clan and Superclan: Loyalty, Identity and Community in Law and Practice, 90 Am. J. Int'l L. 359, 378-82 (1996); Eugene Goldstein & Victoria Piazza, Naturalization, Dual Citizenship and Retention of Foreign Citizenship, 75 Interpreter Releases 1613 and App. I at 1629-32 (Nov. 23, 1998); Tomas Hammar, Basic Civil Rights and Dual Citizenship, unpublished paper to International Conference on Citizenship, State and Identity in a Globalizing World (Bilkent Univ., Ankara, Turkey, June 1-3, 2000); Michael Jones-Correa, Under Two Flags: Dual Nationality in Latin America and Its Consequences for the United States, this volume; H. Ansgar Kelly, Dual Nationality, The Myth of Election, and a Kinder, Gentler State Department, 23 U. Miami Inter-American L. Rev. 421 (1991-92); Rey Koslowski, Changing Norms on Dual Nationality and Military Service (unpublished draft prepared for German American Summer Institute on Immigration, Incorporation and Citizenship in Advanced Industrialized Democracies, Berlin, July 1997); David A. Martin, New Rules on Dual Nationality for a Democratizing Globe: Between Rejection and Embrace, 14 Georgetown Immigration L.J. 1 (1999); Kim Rubenstein & Daniel Adler, International Citizenship: The Future of Nationality in a Globalized World, 1 Ind. J. Global Legal Stud. 519, 546 (2000) (predicting that "multiple nationality will become the norm in international law"); Peter H. Schuck, Plural Citizenships, in Noah M.J. Pickus (ed.), Immigration and Citizenship in the TwentyFirst Century at 149-91 (Rowman & Littlefield, Publishers, Lanham, Maryland, 1998); Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 Emory L.J. 1411 (1997); Peter J. Spiro, Embracing Dual Nationality (Carnegie Endowment for International Peace, 1998); Vargas, supra note 3; cf. Linda Bosniak, Citizenship Denationalized, 1 Ind. J. Global Legal Stud. 447 (2000) (examining range of possible citizenship links to entities broader than a single state). Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 179 L.N.T.S. 101, arts. 1, 2 (done at the Hague, April 12, 1930). For examples, see the website of the Defense Security Agency, a component of the United States Department of Defense,
, and click on "Citizenship of 206 Foreign Countries." Ibid. 81
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when a national of state X naturalizes in state Y, if either state Y does not require renunciation of foreign nationality or state X does not recognize renunciation of its nationality under such circumstances. I do not imply that dual nationality requires all three maxims. Maxims 1 and 2 alone, for example, will sometimes be sufficient. Even if every state enacted precisely the same nationality laws, persons born in one state to parents who are nationals of a different state could become dual nationals if the common nationality laws recognized both jus soli and jus sanguinis. Similarly, maxims 1 and 3 alone could give rise to dual nationality. If each state recognized only one path to dual nationality, but the sole path in state X were jus soli and the sole path in state Y were jus sanguinis, a person born in state X to parents who are nationals of state Y could acquire both nationalities. My point, then, is not that without all three maxims there would be no dual nationality. I suggest only that there exist many dual nationals who would not have achieved that status without the above combination of state autonomy, the multiplicity of nationality routes within each state, and the variations from state to state. These examples further illustrate that a person can end up with any number of nationalities. An individual who is born in state X to a mother from state Y and a father from state Z could conceivably acquire all three nationalities, depending on the laws of the three states. If that person eventually marries someone who through analogous means has three other nationalities, their children might be born with six nationalities - or even seven if they are born in a different, jus soli state. If one of those children in turn marries a person with seven other nationalities, their children could conceivably inherit all fourteen of their parents' nationalities plus a fifteenth if born in another, jus soli state. The only numerical limits are the number of states in the world and any constraints imposed by municipal or international law. B. Why is Dual Nationality on the Rise? The eminent Swedish political scientist, Tomas Hammar, suggested in 1990 that "it will be increasingly difficult in the future to insist on one citizenship only."8 Those words have proved prophetic; since then, much has been written about the dramatic growth in dual nationals and the reasons for the surge.9 Synthesizing that literature, one can distill two kinds of explanations - one stemming from increased international migration and the other from nations' heightened tolerance or even endorsement of dual nationality. Technological advances in information, communication, and transportation, combined with sizeable economic disparities among nations, widespread armed conflicts, systemic violations of fundamental human rights, and other worldwide forces, have Hammar 1990, supra note 4, at 106. The remainder of this subsection draws from the writings cited in supra note 4. 82
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spurred massive increases in international migration.10 Migration, in turn, induces dual nationality in many ways. First, after migration, the unnaturalized parents might have children who acquire both the nationality of the state of birth and the nationality of the parents' state. Migration also often results in (and can be prompted by) marriage between partners of differing nationalities. In such cases, one spouse might acquire the nationality of the other spouse. Even if the spouses retain their original nationalities, and even if the state of birth does not recognize jus soli, the children might acquire both nationalities by jus sanguinis. High rates of international migration also increase the pool of people eligible to naturalize. This is important, because many immigrant-receiving states allow naturalization without insisting on the simultaneous renunciation of foreign nationalities. Dual nationality thus results. In addition, more and more sending states - including Mexico and several Central American states - have recently changed their laws so as to permit their nationals who naturalize overseas to retain their original nationalities. They do this for numerous reasons, including the desire to protect their expatriates from discrimination in their new states of residence. (The United States, though much more a receiving state than a sending state, follows a similar policy.)11 Finally, individuals today have modern reasons to acquire foreign nationalities. The internal free movement rules of the European Union give third-country nationals an incentive to apply for the nationality of a European Union member state on the basis of ancestral links.12 C. Is Dual Nationality a Problem? Collectively, the same writings that have chronicled the rise of dual nationality have thoroughly taken up the normative question as well;13 hence, this subsection too will be just an introductory synthesis. Those writings describe well the historic shifts in public attitudes towards dual nationality. The trend has been from nearly universal condemnation of dual nationality in classical international law, to more qualified disapproval, to more recent tolerance. As section II will illustrate, international agreements on dual nationality tend to track these historical patterns. At least one commentator, Peter Spiro, has gone beyond mere tolerance. He has explicitly embraced dual nationality as a positive good that will encourage naturalization and hence assimilation, afford beneficial legal protections to the individual, and expedite international travel.14 See, e.g., Stephen H. Legomsky, Migration Forces, American Courts, and Immigrants' Rights, in James F. Hollifield & Dietrich Thranhardt, Magnet Societies - Immigration in Post-War Germany and in the USA (forthcoming). 22 C.F.R. § 50.40. Spiro 1997, supra note 4, at 1456-57. See the writings cited in supra note 4. Spiro 1997, supra note 4. 83
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Among the concerns that have been expressed about dual nationality, three themes recur. One theme emphasizes the problem of divided loyalty. Dual nationality is analogized to bigamy; having two countries is compared to having two spouses. A second set of concerns appear to me to rest on a belief that the dual national is unjustly enriched, receiving legal benefits from a state to which he or she feels no meaningful personal attachment and to which he or she owes no significant binding obligations. The objection to allowing double voting might fall within this category. The objection to allowing otherwise unaffiliated individuals to buy citizenship in Dominica or other tax havens is another illustration. A third set of concerns focuses on the practical problems associated with dual nationality. These include double taxation, difficulties in diplomatic and consular intervention, greater physical maneuverability for those engaged in transnational crime, barriers to extradition, and complications in delineating military service eligibility and obligations. The validity and weight of these various concerns, both absolutely and relative to the positive benefits that dual nationality engenders, are of course a matter of individual taste. Ultimately, one's views on dual nationality tend to reflect, among other things, the relative values that one assigns to state sovereignty and personal autonomy and how one feels more generally about the institution that we have come to call citizenship. The more normative significance one attaches to sovereignty and to both geographic and demographic borders, and the more strongly one subscribes to citizenship and nationality as indicia of community membership or as criteria for defining rights, the more one tends to resist dual allegiance and dual nationality. Those who place less weight on state sovereignty and on the state as the source of individual rights, and relatively greater weight on free will and the universality of human rights, seem generally less bothered by dual nationality and often affirmatively drawn to it.15 Perhaps not coincidentally, immigrant-receiving states are generally more hostile to dual nationality than are immigrant-sending states.16 If there is one set of concerns that recurs the most vividly in the literature, it is the impact of dual nationality on military service. The remainder of this paper examines those concerns.
II. MILITARY SERVICE BY DUAL NATIONALS The policy decisions whether and when to permit dual nationality are inseparably linked to the decisions concerning the military service rights and obligations of dual nationals. On the one hand, military service policies can drive dual nationality policies. Indeed, the potential for conflicting military obligations underlay much of For an especially thoughtful discussion, see Thomas M. Franck, Clan and Superclan: Loyalty, Identity and Community in Law and Practice, 90 Am. J. Int'l L. 359, 378-82 (1996) (suggesting that the world's increased tolerance for dual nationality reflects a greater acceptance of free will and a clearer recognition that human beings are capable of multiple loyalties). See, e.g., Hammar 1990, supra note 4, at 112-13. 84
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the historical worry about dual nationality. Moreover, the state's military service needs might impel it to refuse to recognize its citizens' purported renunciation of citizenship upon foreign naturalization. The latter decision, of course, would increase the number of dual nationals. On the other hand, those whose job it is to formulate the military rights and obligations of dual nationals might well want to take into account the ease of acquiring and retaining dual nationality. The easier it is to acquire and retain dual nationality, the higher will be the percentage of the conscription pool that dual nationals comprise and, hence, the state's desire to draft them. Despite this linkage, in order to keep the discussion manageable, this paper assumes no changes to the existing rules of dual nationality and considers what the military service rights and obligations of dual nationals should be in the light of those rules. To that end, it is useful first to try to postulate a general set of policy parameters. With no claim of completeness, I suggest the following as governing principles: 1. Every sovereign state has the right to defend itself and to determine its own defense and national security needs. Therefore, it must be capable of recruiting an adequate military force and excluding anyone who would threaten national security or otherwise impair the effectiveness of its military operations. 2. Military enlistment policies should be fair to those who desire to serve. 3. Military conscription policies should be fair, and not needlessly burdensome, to those who are required to serve. 4. Although military defense is a prerogative of state sovereignty, certain strategic decisions are conducive to international agreement. These latter include agreements that promote harmony among states or otherwise enhance state security (mutual defense pacts being one obvious example), situations in which uniform treatment is desirable because the demands of differing or conflicting municipal laws pose excessive problems for individuals (duplicate military obligations, for example), and agreements designed to protect international human rights. In any of these cases, options include anything from grand multinational conventions, to regional agreements, to bilateral treaties. 5. States often need to decide in which state a dual national should be either eligible to serve or required to serve. Whether this decision is made domestically or internationally, one relevant factor should be the individual's place of ordinary residence. This well settled understanding is reflected in many bilateral or multilateral agreements on dual nationality and military service, as examples in succeeding sections will illustrate. The present section on military service by dual nationals divides the policy decisions into four components: voluntary military service by dual nationals, conscription of dual nationals, loss of one of the nationalities for reasons related to military service, and adaptations for situations that involve armed hostilities between the two dual nationality states. In each case, I attempt to identify the issues, the options, and the 85
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pros and cons of the options. In some instances I take positions in favor of particular options; in other instances I leave the balancing to the reader. A. Voluntary Military Service by Dual Nationals Nationality-related eligibility criteria for military service vary widely from state to state, but dual nationality is rarely a disqualification. In the United States, nationals and even aliens lawfully admitted to permanent residence may enlist.17 No law bars dual nationals. Indeed, the enlistment of individuals with real foreign ties has always been an important element of United States military policy. As Professor Rey Koslowski has observed, during the mid-nineteenth century a majority of United States soldiers were foreign born - some dual nationals, some solely United States nationals by naturalization, and some aliens.18 Today, service by permanent resident aliens in the United States armed forces is rewarded by a reduction in the required residence period for naturalization.19 Similarly, United States law places no automatic legal bar on dual nationals serving as officers.20 There is often a practical bar, however, because a foreign nationality can complicate or thwart the granting of security clearance,21 which in turn is required for officer status.22 In Canada, citizenship is a legal requirement for regular military service,23 but landed immigrants may serve in the reserves (though not as officers).24 Again, there is no bar on dual nationals. In the United Kingdom, the armed forces will accept Commonwealth citizens (i.e., British subjects), Irish citizens, and a numerically limited number of aliens.25 Only Commonwealth or Irish
10 U.S.C. §§ 3253 (army), 8253 (air force). The same requirements apply to the navy and the marines. DoD Issuances, , at E.l.2.2.1 (1993). Koslowski 1997, supra note 4, at 3. 8 U.S.C. § 1439. Officers must be United States citizens, however. 10 U.S.C. § 532. Army Publications and Printing Command, Personnel Security Program, § 3.614 (1998), . For a more detailed explanation of the circumstances under which dual nationality is likely to be a barrier to security clearance, see the website of the Defense Security Service, supra note 6. United States Army Publishing Agency, Enlisted Promotions and Reductions, §§ 1.16 ("security clearance requirements"), 1.10 ("nonpromotable status") (1991), . Department of National Defence, / Want to Know, , confirmed in e-mail from Paul Villeneuve, Public Affairs Officer, Canadian Forces Recruiting Group to Trisha Kelly (May 16, 2000). Department of National Defence, Eligibility, ; Naval Reserve, Recruiting, < http://navreshq.queb.dnd.ca/recrute/Join_e.htm >. See < http://www.army.mod.uk/cgi-bin/netoutcome.exe?redeye_url = army/recruit/soldier/entry.html >; Army Act 1955, 3 ch. 18, § 21; ; Air Force Act 1955, 3 Eliz. 2, ch. 19, §21. 86
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citizens may be officers,26 but again dual nationality is nowhere listed as a disqualifying factor. German law allows Germans (i.e., citizens of Germany and certain miscellaneous others)27 to enlist in the German military.28 It permits the Minister of Defense to admit aliens in time of public need.29 There are no dual nationality disqualifications. Turkish law is somewhat stricter, requiring Turkish citizenship as a condition for military service.30 Still, no provision excludes dual nationals from military service. The only country whose laws I know to disqualify dual nationals from military service is Mexico. The disqualification appears in a 1998 decree, which requires members of the Mexican armed forces to be Mexican citizens by birth in Mexico who have not acquired any foreign nationality.31 In summary, then, most of the states mentioned above staff their armed forces exclusively with their own nationals, though several permit specified aliens to serve. Only Mexico excludes dual nationals from voluntary enlistment. All states appear to make their own nationality a condition for military officer positions, but none (except Mexico) explicitly bars dual nationals from the officer corps. At least in the United States, however, dual nationality can be an obstacle to security clearance, which is a requirement for officer status. In contrast to the conscription policies discussed in the next subsection, there seems no reason that states' policies concerning the voluntary enlistment of dual nationals cannot be made unilaterally, through domestic law. In principle, states generally have little interest in whether other states permit dual nationals to enlist voluntarily. There are at least two caveats to the "who cares?" principle, but both are weak. A state's decision to allow dual nationals to enlist in its armed forces could possibly affect the military conscription policies of the other state of nationality. If the latter state drafts its own nationals, including dual nationals, it might regard double service as too burdensome and thus find it necessary to exempt from conscription the dual national who has already completed voluntary service in the other state of nationality. This quandary, however, does not seem adequate reason to fetter the discretion of the state of residence to allow dual nationals to serve. The drafting state still has a See generally < http://www.army.mod.uk/cgi-bin/netoutcome.exe?redeye_url = /army/recruit/officer/ entry.html >; < http://www.royal-navy.mod.uk/marines/join.html >; < http://www.raf-careers.com/ brief/selection/index.html >. See Grundgesetz art. 116(1). Soldatengesetz § 37(1) Nr. 2. Ibid, § 37(2). Constitution of Republic of Turkey, art. 72, ; Turkish Military Code of 1927, Law No. 1111, art. 1 (June 21, 1927). Decreto por el que se reforman diversos ordenamientos legales, D.O., (Jan. 28, 1998). Confirmations of this law appear in a publication of the Los Angeles branch of the Mexican Consulate General, Nacionalidad Mexicana, < http://www.consulmex-la.com/esp/nacional.html >, and in a publication of the Mexican Secretary of Foreign Relations, No Perdida de Nacionalidad, < http://www.quicklink.com/ mexico/gob98mar/nacional.html >. 87
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choice, constrained by policy as that choice admittedly might be. It could decide, either through its own domestic law or through the kinds of international agreement discussed in the next subsection, either to exempt or not to exempt dual nationals who have voluntarily completed military service in their other states of nationality. A second caveat concerns a state's decision not to permit voluntary enlistment by dual nationals. If a dual national of states X and Y resides in state X, and state X prohibits dual nationals from serving in its military, state Y might object on the ground that state X is discriminatorily denying military career opportunities to nationals of state Y - in much the same way that state Y might object if state X were discriminating against nationals of state Y in any other way. Such an objection would be insubstantial. Only one specific career is being made unavailable, and if state X believes that the presence of foreign nationals in its military would needlessly compromise its national security, that belief should be tolerated as within its sovereign prerogative. On the assumption that it should be within the province of a sovereign state to decide unilaterally whether to allow dual nationals to enlist voluntarily in its armed forces, the next question is whether states are wise to do so. The above discussion suggests that states generally permit dual nationals to serve. If those policies have created any problems, they are not apparent. As the saying goes, if it ain't broke, don't fix it. Moreover, since many states permit even certain resident aliens to enlist, and since aliens (except those who are stateless) are nationals only of foreign states, there is even less reason for the enlistment state to question the loyalty of those who are both its own nationals and nationals of another state. In any case, the decision whether to allow dual nationals to enlist in the armed forces reflects several considerations that inevitably vary from state to state. The state surely will want to take into account its overall military personnel needs. These hinge on the nature of the state's overall defense requirements, which in turn will depend on its geography, its foreign relations, its economic resources, and any other factors that influence the likelihood of external aggression or internal insurrection. The state will also consider the optimal degree of reliance on personnel, as distinguished from technology; the political, cultural, and philosophical norms of its population on the subjects of citizenship obligations generally and conscription specifically; the size and skills of the available volunteer pool; and the state's relations with the particular states with which it shares significant numbers of dual nationals. Even this presumably incomplete list of relevant factors illustrates the need for state-bystate decisions whether to permit enlistment by dual nationals. B. Conscription of Dual Nationals In discussions of dual nationality, conscription has been by far the single greatest practical concern expressed. Historically, the most famous example was the British policy of seizing British-born, American-naturalized men on the High Seas and 88
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impressing them into its Navy - a policy that led ultimately to the War of 1812.32 Arguably, however, the real problem there was not the concept of dual nationality but the particular cause of the dual nationality in question - the doctrine of perpetual allegiance, whereby Great Britain refused to recognize the voluntary renunciation of British nationality by naturalized Americans.33 In any event, Professors Spiro and Koslowski have noted some less familiar nineteenth century European practices, including analogous conscription of naturalized Americans by France, Spain, Prussia, and other German states upon return visits to the homeland.34 Even today, some naturalized citizens fear conscription in the event they visit certain countries of origin, including Turkey, Greece, and Iran, which might not recognize the renunciations of their original nationalities prior to fulfillment of military service.35 Undoubtedly, these uncertainties are capable of working hardship for the affected individuals. The same uncertainties can strain international relations, albeit not usually to the breaking point reached in the case of the War of 1812. The tensions arise because often the dispute occurs when the individual requests the naturalization state to intervene diplomatically with the conscription state. Complex and unpredictable policies have resulted.36 1. Contemporary conscription policies Today, there is far less conscription, and far less need for conscription, than in former times. As others have observed, international wars have become much less frequent, in part because of the general spread of democracy and the lessened propensity of democracies to engage one another in war.37 Of course, as others have also noted, this factor does not reduce the probability of war between democratic and nondemocratic states.38 Civil wars, too, remain a modern scourge. The significance of the international character of the war is explored below in the context of dual nationals' obligations during armed hostilities between the two states of nationality.39 Related to but distinct from the generic rise of democracy are other developments that further reduce the incidence of war. These include the end of the Cold War (a development itself responsible for much of the growth of democracy) and the creation and fortification of security communities like the North American Treaty
32
33 34 35 36 37
38 39
Charles Gordon, The Citizen and the State: Power of Congress to Expatriate American Citizens, 53 Georgetown L. Rev. 315, 319 (1965). See Spiro 1997, supra note 4, at 1420-24 (discussing history of perpetual allegiance). Spiro, supra note 4, at 1424; Koslowski 1997, supra note 4, at 3. Hammar 1990, supra note 4, at 116-17. Bar-Yaacov, supra note 4, at 64-70. See, e.g., Martin, supra note 4, at 7; Spiro 1997, supra note 4, at 1461. For a more detailed account of the correlation between democracy and war, see Bruce Russett, Grasping the Democratic Peace Principles for a Post-Cold War World (Princeton Univ. Press, 1993). Martin, supra note 4, at 7-8 & n.23. See infra section II.D.
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Organization, the West European Union, and the Organization for Security and Cooperation in Europe.40 Even when wars do occur, not as many humans are needed as before. Advances in air, naval, weapons, information, and communication technology have made military operations less reliant on infantry and other personnel, especially unskilled personnel.41 Combined with what Professor Koslowski has called "low thresholds of mortality toleration by democratic societies,"42 these factors make conscription both less desirable and less essential.43 The resulting trend, at least in Europe and North America, has been to abandon military conscription, either by repealing the legal authority or by simply not exercising it. Several European states have already ended conscription or announced decisions to cease imminently. They include Belgium, France (announced), Ireland, Luxembourg, Malta, the Netherlands, Spain (to be phased out by 2003), and the United Kingdom.44 The United States,45 Canada,46 and Mexico47 similarly no longer draft. A number of other states continue to conscript. Turkish law requires every male
Koslowski 1997, supra note 4, at 2, 10, see generally Karl W. Deutsch et al. Political Community in the North Atlantic Area (Princeton Univ. Press, 1957). Deutsch and his co-authors define a "security community" to require "real assurance that the members of that community will not fight each other physically." Ibid, at 5. Koslowski 1997, supra note 4, at 10; Martin Binkin, Military Technology and Army Manpower: Do Smart Weapons Require Smart Soldiers?, in Mark J. Eitelberg & Stephen L. Mehay (eds.), Marching Towards the 21st Century: Military Manpower and Recruiting (Greenwood Press, Westport, CT, 1994), at 169 et seq. (associating increasingly complex hardware with heightened need for skilled recruits); Eliot A. Cohen, A Revolution in Warfare, 75 Foreign Affairs No. 2, at 37 (1996). Koslowski 1997, supra note 4, at 10. This point too has been made by others. E.g., Koslowski 1997, supra note 4, at 2, 10-11; Martin, supra note 4, at 7; Spiro 1997, supra note 4, at 1461. Koslowski 1997, supra note 4, at 11-12. In the case of the United Kingdom, however, the government retains the common law power to require either land or naval service in times of public necessity. See J.P. Gardner (ed.), Institute for Citizenship Studies and British Institute of International and Comparative Law, Citizenship - The White Paper 153-55 (1997). Although no one is currently being drafted, United States law continues to require all male citizens and "every other male person residing in the United States" (legally or otherwise) to register for the draft. 50 App. U.S.C. §453(a). The Emergencies Act, R.S.C. ch. 22, § 40(2) (1985), reads: "The power ... to make orders and regulations [concerning war emergencies] may not be exercised for the purpose of requiring persons to serve in the Canadian Forces." Although this provision does not literally prohibit conscription by means other than war regulations, no other Canadian law appears to provide any affirmative authorization to conscript. The Canadian government confirms that there is no peacetime draft in Canada but suggests that a wartime draft is possible. E-mail from Paul Villeneuve, Public Affairs Officer, Canadian Forces Recruiting Group to Trisha Kelly (May 16, 2000). Interview with Ambassador Carlos Pujalte, General Director of Legal Affairs, Ministry of Foreign Affairs, Mexico (Mexico City, Feb. 17, 2000). The only qualification added by Ambassador Pujalte is that Mexican citizens can be required to attend Saturday military reserve sessions for one year.
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Turkish citizen to perform military service48 but exempts certain dual citizens and certain other Turkish citizens residing overseas who have performed compulsory military service in those states of residence.49 Importantly, Turkish law does not extend this exemption to anyone whose foreign military service was voluntary. To implement that distinction, the Turkish government has published a list of other states that it regards as requiring military service. The list includes Austria, Denmark, Finland, Germany, Israel, Italy, Norway, Sweden, and Switzerland.50 To this list one can add El Salvador,51 Greece, and Iran.52 Like Turkey, Germany exempts from conscription a person who has performed the prescribed amount of compulsory military service in another state.53 Thus, the domestic laws of Germany and Turkey together approximate the prohibition against double conscription that is typically embodied in the bilateral treaties discussed below (except that, as noted, Turkish law specifically refuses to credit voluntary foreign military service). Debates on the question of whether to end conscription have been ongoing in Austria, Belarus, Germany, Russia, and Ukraine.54 2. International agreements on the conscription of dual nationals A series of international agreements - ranging from worldwide multinational conventions to regional conventions to simple bilateral treaties - have addressed some of the specific problems associated with the conscription of dual nationals. In 1930 the League of Nations convened a Conference for the Codification of International Law; its main task was to sort out the problems associated with dual nationality.55 The Conference adopted the Convention on Certain Questions Relating to the Conflict of Nationality Laws56 and, more relevant here, the Protocol Relating to Military Obligations in Certain Cases of Double Nationality (hereafter cited as the 1930 Constitution of the Republic of Turkey, arts. 1, 72, reproduced in http://tbmm.gov.tr/develop/ppwa/ anayasa.iki >. One may reduce his required service to one month, however, by paying 5,000 German marks (not Turkish lire). Comments of Prof. Rona Aybay (Berlin, 14 July 2000). Turkish Military Code of 1927, Law No. 1111 (June 21, 1927), art. 2. MSB. Liginin 09 Ocak 1998 gun ve ASAL; 7420-4-98/ Er Isl. S. Vat. Isl. Ks. Sayili Yazisinin Ek-D'dir. (Turkish Ministry of Defense), in e-mail from Askere Alma Daire Baskanlgi (Military Selective Institution) to Yusuf Caliskan (Apr. 2, 2000). Constitution Politica de la Republica de El Salvador, art. 215, ; Ley de la Carrera Militar, D.L. No. 476, art. 8, cl. 22 (Oct. 18, 1995). See Hammar 1990, supra note 4, at 116. A military draft is a necessary condition for inclusion in the list, but it is not sufficient. El Salvador, for example, will likely drop off the list because the number of dual Turkish-Salvadoran nationals is small. Iran and Greece will probably be dropped for foreign policy reasons; Turkey does not wish to reward dual nationals for serving in the armed forces of those two states. Comments of Prof. Rona Aybay (Berlin, 14 July 2000). Wehrpflichtgesetz (Act of Liability to Military Service), § 8(2)(1,2). Koslowski, supra note 4, at 12-13. Bar-Yaacov, supra note 4, at 80. 179 L.N.T.S. 101 (done at the Hague, Apr. 12, 1930).
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Hague Protocol).57 For present purposes, the most important provisions of the Protocol were articles 1 and 2. They read: Article 1. A person possessing two or more nationalities who habitually resides in one of the countries whose nationality he possesses, and who is in fact most closely connected with that country, shall be exempt from all military obligations in the other country or countries. This exemption may involve the loss of the nationality of the other country or countries. Article 2. ... [I]f a person possesses the nationality of two or more States and, under the law of any one of such States, has the right, on attaining his majority, to renounce or decline the nationality of that State, he shall be exempt from military service in such State during his minority. The habitual residence test in article 1 is especially noteworthy, because, as discussed below, many other treaties on this subject - both multilateral and bilateral - employ analogous strategies. While this convention represented the first broad multinational attempt to codify some of the rules that govern the conflicting military obligations of dual nationals, it is binding only in dealings between states that are parties to the 1930 Hague Protocol.58 As of April 25, 2000, there were 26 states parties. These include the United States, El Salvador, Cuba, Belgium, the United Kingdom, the Netherlands, Sweden, Australia, South Africa, India, and several African states - but not Mexico, most of the Latin American states, or most of the other European states.59 Subsequent major multinational conventions on this subject were regional European agreements. The Council of Europe sponsored the 1963 Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality (hereafter cited as the 1963 Convention).60 Its name accurately reflects its tone. The premise, reflective of the times, was that dual nationality is problematic. The goal was to reduce its incidence. The principal strategies for achieving that goal were (a) to provide for the automatic loss of one's original nationality upon foreign naturalization (subject to exceptions);61 and (b) to eliminate various constraints on a dual national's voluntary renunciation of one nationality.62 As the title of the Convention also reveals, however, dual nationals' exposure to conflicting military obligations was a particularly pressing concern. On that subject, the philosophy was similar to, but the strategy more detailed than, that of the 1930 Hague Protocol. The military service portion of the 1963 Convention begins with 178 L.N.T.S. 227 (done at the Hague, Apr. 12, 1930). Ibid., art. 4. See . European Treaty Series, No. 043 (done at Strasbourg, June 5, 1963). Ibid., art. 1. Ibid., arts. 2-4. 92
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the principle that dual nationals of states parties "shall be required to fulfil their military obligations in relation to one of those Parties only."63 But which one? The states parties may choose to answer that question by entering into bilateral treaties.64 If they do not do so, then, under article 6, a dual national of two or more states parties is subject to military obligation in the state where he or she is "ordinarily resident. " Until age 19, however, the person may choose instead to volunteer for military service, for a comparable duration, in his or her other state of nationality.65 A dual national who is ordinarily resident in a third state that is also a party to the 1963 Convention, or in a state that is not a party, similarly may elect military service in any of his or her nationality states that are parties to the Convention (regardless of age).66 Under any of those scenarios, the person's service fulfills all military obligations to all his or her nationality states that are parties to the Convention.67 By way of exception, none of these priority rules applies in the event of mobilization of the armed forces.68 Thirteen states including France, Germany, and the United Kingdom, but not including Turkey - have ratified the 1963 Convention.69 The Council of Europe has adopted three protocols to the 1963 Convention. A 1977 Protocol enables dual nationals to fulfill all military obligations by receiving medical or other exemptions in one nationality state; by performing civil service in lieu of military service; by maintaining ordinary residence, until a certain age to be worked out by the parties, in a nationality state that does not require military service (subject to certain conditions); or by performing voluntary military service of a specified duration in a nationality state that does not require military service.70 As of February 7, 2000, only eight states have ratified this Protocol.71 An additional 1977 Protocol, designed to enhance interstate communication and cooperation in the enforcement of the Convention, is in effect for the four states that are parties.72 Finally, a "Second Protocol, " adopted in 1993, reflects the relaxed attitude toward dual nationality that by this time had developed in Europe. It amends the 1963 Ibid., art. 5(1). Ibid., art. 5(2). Ibid., art. 6(1). It is assumed that "ordinarily resident" was meant to convey the same meaning as "habitually resides," the term used in the 1930 Hague Protocol. Ibid., art. 6(2). Ibid., art. 6(3). Ibid., art. 6(7). < http://conventions.coe.int/treaty/EN/searchsig.asp?NumSTE = 043 >. The states parties are Austria, Belgium, Denmark, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Norway, Spain, Sweden, and the United Kingdom. The most recent ratification was by Belgium in 1991. Protocol amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, E.T.S. No. 095 (done at Strasbourg, Nov. 24, 1977), art. 2. They are Belgium, Denmark, Luxembourg, the Netherlands, Norway, Spain, Sweden, and the United Kingdom. Again, Belgium's 1991 ratification was the most recent. The four states parties are Belgium, Luxembourg, the Netherlands, and Norway. Additional Protocol to the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, E.T.S. No. 096 (done at Strasbourg, Nov. 24, 1977).
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Convention's provision for automatic loss of nationality attendant upon foreign naturalization by allowing states parties to exempt a naturalization that occurs in the state where the person was born and resides, or in the state where the person has resided since age 18.73 It also permits exceptions to the principle of automatic loss of nationality in certain cases involving marriage and minors.74 This Protocol does not otherwise affect the issue of military service. As of February 7, 2000, only three states have become parties.75 The most recent multinational agreement on this subject is the 1997 European Convention on Nationality (hereafter cited as the 1997 Convention).76 In the same tradition as the 1993 Protocol, the 1997 Convention takes a far more tolerant view of dual nationality than the 1963 Convention did. The 1997 Convention affirmatively promotes dual nationality for those who acquired it at birth and is agnostic with respect to dual nationality that results from naturalization.77 Its provisions on military service are virtually identical to those of the 1963 Convention as amended by the 1977 Protocol.78 As of February 7, 2000, only three states - Austria, Moldova, and Slovakia - have ratified the 1997 Convention.79 But an impressive array of other states - including many Cold War adversaries - have signed the 1997 Convention and are expected to ratify it in due course. Thus, all three of the major multinational conventions prohibit double conscription of dual nationals of states parties. In addition, the 1977 Protocol to the 1963 Convention, as well as the 1997 Convention, prohibit either state of nationality from conscripting a dual national who has voluntarily enlisted in the armed forces of the other state of nationality. Probably more important and certainly more numerous than these multinational conventions are the plethora of bilateral treaties concerning dual nationals generally and their military service obligations specifically. The Annex to this paper lists twenty-two randomly selected examples, with appropriate citations. The footnotes that appear in this discussion of bilateral treaties refer to the official treaty numbers that appear in the Annex. Most of the treaties apply to all dual nationals, but a few expressly confine themselves to individuals who acquired dual nationality automatically at birth80 or specifically exclude those people whose dual nationality resulted from naturalization.81 Second Protocol amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, E.T.S. No. 149 (done at Strasbourg, Feb. 2, 1993), art. 1. Ibid.
The three states are France, Italy, and the Netherlands. . European Convention on Nationality, E.T.S. no. 166 (done at Strasbourg, Nov. 6, 1997). The Council of Europe's commentary on the Convention appears in European Documentation Centre on Nationality, Council of Europe Achievements in the Field of Law - Nationality (Strasbourg, Jan. 1998). See art. 15. Ibid., arts. 21, 22. < http://conventions.coe.int/treaty/EN/searchsig.asp?NumSTE = 166 >. No. 23004, arts. 1, 2.
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While these treaties vary in several respects noted below, one universal theme is that dual nationals who have performed military service in one of their states of nationality - voluntarily or otherwise - should not be obligated to serve again in the armed forces of the other state of nationality.82 Many treaties explicitly apply the same principle to dual nationals who have received medical or other exemptions in one of their states of nationality.83 At least one treaty extends the principle even further, by providing that a dual national who habitually resides in his or her state of nationality that does not require military service is exempt from conscription in the other state of nationality.84 Some treaties also specifically require each dual nationality state to honor temporary draft deferments granted by the other dual nationality state.85 By way of exception to these general prohibitions on double conscription, a few treaties provide that if a dual national fulfills his military obligations in one of the states of nationality, and subsequently takes up permanent residence for a specified number of years in the other state of nationality, the latter may conscript him despite his prior compulsory service.86 But these sorts of provisions are merely the start of the inquiry. If a dual national may not be subjected to the duplicate demands of two or more states, the question is which state has superior drafting rights. At least two approaches have been common. One approach is to let the dual national decide in which state to serve.87 There are several subvariants. At least one such treaty exempts dual nationals from both drafts until a specified age slightly greater than the age of majority, at which time the person performs military service in the nationality state of his or her choice.88 Some treaties specifically (or only) allow those dual nationals who are living in third states to decide in which of the nationality state's armed forces they will serve.89 A second approach focuses on "habitual residence" or on some linguistic equivalent such as "ordinary residence" or "customary residence" or "permanent residence" or
No. 6428, art. 1; No. 10709, art. 1. No. 737, arts. 1, 2; No. 1094, arts. 2, 3; No. 2842, arts. 2, 3; No. 2936, arts. 4, 5; No. 3452, art. 3 (actually a trinational treaty); No. 3516, arts. 2, 4; No. 3786, arts. 1, 2; No. 5004, arts. 1, 2, 4; No. 5195, arts. 1, 3; No. 5793, arts. 2, 3; No. 6163, arts. 1, 2; No. 6428, art. 5; No. 6468, arts. 3, 5; No. 6554, arts. 1, 2; No. 7000, art. 1; No. 8698, art. 2; No. 9077, arts. 1, 2; No. 10709, art. 5; No. 15487, arts. 4, 6; No. 16191, arts. 5, 8(1); No. 22415, arts. 4, 5; No. 23004, arts. 1, 2. No. 2842, art. 5; No. 3452, art. 6; No. 3516, art. 3; No. 5004, art. 3; No. 5195, art. 2; No. 5793, art. 4; No. 6428, art. 5; No. 6554, art. 1; No. 7000, arts. 1, 2; No. 9077, arts. 1, 2; No. 10709, art. 5; No. 15487, art. 5; No. 16191, art. 6. No. 6468, art. 6. No. 5004, art. 5; No. 5195, art. 4; No. 5793, art. 5. No. 6428, art. 5; No. 10709, art. 5; No. 16191, art. 8(2). No. 2842,art. 4;No. 3516, art. 4;No. 6428, art. 3;No. 10709, art. 2;No. 15487, art. 2(1); No. 16191, art. 2(1); No. 22415, art. 2. No. 2842, art. 4. No. 6428, art. 2;No. 10709,art. 2;No. 15487, art. 2(3); No. 16191, art. 2(3); No. 22415, art. 2.
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"domicile." Under this approach, a state may not draft a dual national who habitually resides in the other state of nationality.90 Some treaties embody elements of both the free choice approach and the habitual residence approach. Sometimes, for example, the treaty renders the dual national subject to military obligations in the state of nationality in which he habitually resides, unless, by a specified time, the person declares that he will perform military service in his other state of nationality.91 The free choice and habitual residence approaches differ in form, but I would suggest that in practice the results typically converge. Even under a habitual residence treaty, which prohibits the non-residence state from drafting dual nationals, nothing prevents dual nationals from enlisting voluntarily in the armed forces of the nonresidence state. Once a person does so, the prohibition on drafting a dual national who has already performed military service then prevents conscription in the residence state. The practical effect is to give a dual national approximately the same options that he or she would have had under a free choice treaty. I describe the practical results as only approximately the same because some differences between the two types of treaties do exist. As noted above, a free choice treaty might grant an automatic deferment, typically until some specified age. In contrast, a treaty that merely bars the non-residence state from drafting a dual national does not require the residence state to wait until the person attains a specified age. The individual could probably still avoid serving in the residence state's armed forces by immediately enlisting in the armed forces of the other state of nationality, but that strategy would not result in the kind of deferment possible under a free choice type of treaty. Even that last suggestion is subject to a caveat. Suppose a dual national of states X and Y habitually resides in state X. Assume the person hopes he will not be drafted at all but would prefer to serve in state Y rather than state X in the event military service proves unavoidable. May the person wait until he receives a draft notice from state X and then, upon receiving it, immediately enlist in the armed forces of state Y? Or will it be too late by then? The literal language of the bilateral treaties varies considerably on this point and frequently leaves that question open. Three distinct events should be distinguished - draft registration, receipt of the order to report for service, and actual induction into the armed forces. Several treaties use ambiguous language that could be interpreted to allow the dual national to make the decision any time before actual induction but which could also be interpreted to require a decision before receipt of the order to report. A treaty between Israel and France, for example, requires dual nationals who wish to serve in the non-residence state to make the decision "before No. 2936, arts. 1, 2; 1930 Hague Protocol, supra note 57, art. 1; cf. the treaties listed in supra note 87 (requiring dual national to fulfill military obligations in residence state but allowing voluntary enlistment in non-residence state instead). No. 6428, arts. 2, 3; No. 15487, art. 2; No. 16191, art. 2; No. 22415, art. 2.
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being called to perform their active military service by the other state" (emphasis added).92 A treaty between France and Spain requires such a decision "before being called by the other state to fulfil their national service obligations" (emphasis added).93 A treaty between Spain and Italy requires the decision "before being enlisted by the other High Contracting Party to perform active national or military service" (emphasis added).94 Whether these phrases literally refer to the order to report or whether the person may wait until the order arrives and then decide before reporting for actual induction is not clear. A treaty between Belgium and the Netherlands contains an interesting asymmetry on this point. Under article 4, a dual national who resides in the Netherlands may volunteer in Belgium "before being called upon to perform his military service in the Netherlands" (emphasis added).95 Again, this language might refer to either the order to report or the actual induction. Yet article 5 of the same treaty provides that a dual national who lives in Belgium may volunteer in the Netherlands "before reporting to the Recruitment and Selection Centre" (emphasis added).96 A treaty between Denmark and Italy raises all three possibilities. It requires dual nationals to make their decisions "on presenting themselves for registration for military service or, if they have been registered automatically, not later than the date on which their age group is called to the colours" (emphasis added).97 Virtually identical language appears in a treaty between the Netherlands and Italy.98 Still another approach on the timing issue appears in a treaty between France and Italy. It requires a decision no later than "the call-up date of the age group to which he belongs..." (emphasis added).99 This provision appears to contemplate a decision before actual induction and seemingly reflects the assumption that service is a certainty rather than a mere likelihood or possibility. One last variable is worth noting. Many of the bilateral treaties contain exceptions that grant the states parties more leeway in situations of emergency,100 or when troops have been mobilized,101 or in time of war.102 The degree of extra leeway reserved in those situations also varies from one treaty to another. Many treaties 92 93 94 95 96
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No. 6428, art. 3. No. 10709, art. 3. No. 16191, art. 3. No. 2936. This is the Centre at which one registers for conscription, not the Centre at which one reports for duty. Comments of Prof. Gerard-Rene de Groot (Berlin, 14 July 2000). No. 3516, art. 1. No. 6468, art. 2. No. 15487, art. 3(1, 2). No. 1094, art. 4; No. 2842, art. 9; No. 3786, art. 4; No. 5004, art. 8; No. 5195, art. 7; No. 5793, art. 7; No. 6428, art. 5. No. 3516, art. 6; No. 6428, art. 7; No. 6468, art. 7; No. 9077, art. 5; No. 10709, art. 7; No. 15487, art. 9; No. 16191, art. 9. No. 6163, arts. 1, 2 (double service barred only "in peacetime"); No. 6554, arts. 1, 2 (same); No. 7000, arts. 1, 2 (same); No. 9077, art. 5 (not applicable "in wartime").
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permit either of the two states to draft dual nationals under those special circumstances.103 Some others permit only the state of habitual residence to do so.104 In contrast, one treaty explicitly precludes exceptions even in wartime.105 3. Where to go from here? The preceding discussion reveals a complex network of worldwide, regional, and bilateral agreements, all superimposed on a shifting foundation of nonuniform domestic laws and policies. These international agreements have a common core, prohibiting the compulsory military service of a dual national who has already performed military service of a comparable duration in another state of nationality. Typically, either directly or indirectly, the treaties also allow dual nationals to choose the states in whose armed forces they will serve. Beyond those common elements, however, the treaties are incomplete, often ambiguous on crucial issues, and in any case quite varied. Are the problems large enough to require a major fix? On the one hand, as observed earlier, the number of dual nationals in the world is surging rapidly. On the other hand, changes to the world's economic, political, and military landscapes have substantially diminished the probability that a given dual national will be exposed to conflicting military obligations. A new, worldwide multinational convention that would fully spell out the military obligations of dual nationals seems both unnecessary and politically unrealistic. It is unnecessary for several reasons. As noted earlier, states today regard conscription as less beneficial, and conscription therefore is less prevalent, than in former times. Thus, the problems that a new multinational convention would be designed to solve arise less frequently than before. Moreover, the 1930 Hague Protocol already lays out the core principles that, even in the face of today's more tolerant attitudes toward dual nationality, are still generally compatible with prevailing norms on the subject of dual nationals' military obligations. And in Europe, the 1997 Convention provides a similar vehicle for all Council of Europe member states (and selected non-European states)106 that desire multilateral arrangements. In any event, any state that perceives the issues as pressing enough can always attempt to negotiate bilateral treaties with its relevant partners. The particular states with which they most need common understandings might of course be unwilling to agree, but if so, then those states most likely would also have been unwilling to join a multilateral convention that imposes similar obligations. Apart from being unnecessary, a grand multilateral convention on this subject at least a convention that goes further than the 1930 Hague Protocol - seems 103
No. 1094, art. 4;No. 2842,art. 9;No. 3786, art. 4;No. 5195, art. 7;No. 5004,art. 8;No. 5793, art. 7; No. 6428, arts. 5, 7; No. 6468, art. 7; No. 6554, arts. 1, 2; No. 7000, arts. 1, 2; No. 9077, art. 5. 104 No. 3516, art. 6; No. 10709, art. 7; No. 15487, art. 9; No. 16191, art. 9. 105 No. 2936, art. 11. ice 1997 Convention, art. 27(1). 98
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politically unachievable. No groundswell of interest among states is evident. In part, the hesitance might reflect a general perception that the issues are not yet compelling. In addition, states' interests vary so widely that consensus would be hard to garner. Some states conscript and others don't. Some states recognize dual nationality through naturalization and others don't. In some states, immigration far exceeds emigration while in others the opposite is true. Some states are members of important regional associations while others are not. States' relationships with the particular states with whom they share large numbers of dual nationals might also influence their preferences. Perhaps these factors help explain why the existing generic and regional agreements on the military obligations of dual nationals have attracted so few participants. Nonetheless some uncertainties and some conflicts remain. Most of the world's states have still not ratified any of the major multinational conventions that establish even the most basic principle governing the military obligations of dual nationals the prohibition on conscripting a dual national who has already performed military service in his other state of nationality. As the discussion in the preceding subsection illustrates, a number of more specific issues also remain unsolved. Given both the potential impact of conscription on the life of the individual and the still tangible, albeit reduced, potential for international disputes over the issue, these problems are worth addressing. In some instances, key states could take unilateral actions that would decrease the likelihood of conflict. Turkey, for example, could choose to expand its exemption for dual nationals who have been conscripted in their other states of nationality so that it also covers those dual nationals whose prior military service was voluntary. In other instances, bilateral agreements might be more effective. The major receiving states in North America - the United States and Canada - no longer conscript soldiers and thus do not face the same issues as, for example, those European states that still conscript. That is not to say that the United States and Canada have no interest in other states' conscription policies. If, for example, a dual national of the United States and El Salvador habitually resides in the United States, but is conscripted by El Salvador during a brief visit there, the United States might well be requested to intervene diplomatically on behalf of that individual. Since the United States does not maintain its own draft, however, the likelihood of a dispute is much less than it would otherwise be, and the nature of the national interests at stake also differs from that faced by drafting states. Consequently, treaty negotiations between the United States and El Salvador most likely would differ appreciably from treaty negotiations between two states that continue to conscript - for example, Germany and Turkey. Bilateral agreements have a further advantage over multinational conventions. They enable states to focus on large problems without having to solve small ones simultaneously. Bilateral agreements can target the most heavily represented or significantly affected populations. If state X is host to a large population of dual nationals of states X and Y, but host to very few dual nationals of states X and Z, 99
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then barriers to reaching agreement with state Z need not frustrate an agreement between states X and Y. A bilateral agreement also has advantages over domestic law reform. Bilateral agreements can be structured to achieve symmetry and, therefore, parity. State X and state Y can agree that each state will treat common dual nationals in precisely the same way. As for the content of such bilateral treaties, I offer the following suggestions: Double drafting. In the existing bilateral treaties on the military obligations of dual nationals, as well as in all the multinational conventions, one norm is universal. As the previous subsection illustrated, there is a consensus that, once a dual national has been conscripted by one state of nationality and has fully served his required term, conscription by the other state of nationality is impermissible. If the issue were one of first impression, such a norm would seem sensible but not inevitable. If citizenship or nationality is conceived as resting on the mutual consent of the individual and the state - itself a controversial assumption107 - then one could argue that double-dippers should be double-payers. Most individuals possess one, and only one, nationality. Arguably, a person who elects to retain the benefits of two nationalities should also be expected to fulfill the obligations associated with both nationalities, including military service. But the issue is not one of first impression. The consensus that the multitude of existing treaties reflects is worth preserving in the absence of serious problems. Moreover, dual nationality frequently is not the product of choice. It can not only arise at birth, typically through a combination of jus soli and jus sanguinis as explained earlier, but also persist involuntarily, for example when a state refuses to recognize the renunciation of its nationality by a person who has not fulfilled his military obligations. Even when a dual national has the option to renounce one of his or her nationalities, the events that gave rise to dual nationality in the first place - foreign birth, foreign-born parents, a foreign spouse, etc. - are likely to have created meaningful bonds that it would be inhumane to require the person to sever. At the same time, the existing norm undoubtedly reflects a commonly held view that insisting on two consecutive terms of military service would be unduly burdensome and disruptive. Gerald Neuman has called this model of citizenship bilateral liberalism. He distinguishes it from unilateral liberalism, under which citizenship is generally a matter of individual right. Still other possible models include republicanism and communitarianism, which emphasize engagement in the life of the polity and cultural assimilation, respectively. See Gerald L. Neuman, Justifying U.S. Naturalization Policies, 35 Va. J. Int'l L. 237, 238-42 (1994). What Professor Neuman calls bilateral liberalism resembles what some others have described as a consent-based model of citizenship. See, e.g., Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (1985); T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. L. Rev. 1471, 1487-88 (1986). For a defense of the republican model with a communitarian tinge, see David A. Martin, The Civic Republican Ideal for Citizenship, and for Our Common Life, 35 Va. J. Int'l L. 301 (1994). I have suggested elsewhere that a variety of other models could also be constructed. See Stephen H. Legomsky, Why Citizenship?, 35 Va. J. Int'l L. 279, 283-84 (1994).
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For those reasons, conscripting states who share significant numbers of dual nationals with other conscripting states, and who have not yet entered into bilateral treaties that embody prohibitions against double drafting, should consider doing so.108 I add two caveats. First, sometimes domestic law has already solved the problem. The domestic laws of both Germany and Turkey, for example, prohibit the conscription of dual nationals who have already fulfilled their compulsory military obligations in their other states of nationality.109 Second, as is true of many of the treaties already discussed, the parties might wish to authorize derogation from the double drafting prohibition in cases of emergency, including specifically mobilization or war. Such derogations could extend to either state party, or they could be confined to the state party in which the person habitually resides, as the parties prefer. One particular double-drafting problem of great contemporary significance warrants separate discussion - conscription by private militias engaged in civil insurrection.110 From Central America to Bosnia to Somalia and Rwanda, rebel forces have increasingly come to rely on forced recruitment to fill their ranks. Should a dual national who is forcibly recruited into a rebel militia in one state be exempt from subsequent conscription in his other state of nationality? There is some instinctive appeal to a norm that would avoid subjecting a person to multiple military interruptions of his life plans. But a draft exemption for dual nationals who have been forced to serve in rebel armies would be both problematic and politically unrealistic. First, the state against whom the person was forced to fight is inherently unlikely to reward insurrection, even when the person's participation was under duress. For the same reason, a bilateral agreement between the two states of nationality is highly unlikely; at least one of the states would surely refuse to reward those who take up arms against it. Thus, if any such exemption were to come about, it would normally have to arise under the municipal law of the other state. And the unilateral adoption of such an exemption would antagonize the state against whom the person took up arms. Second, even if a state were otherwise willing to exempt those drafted by foreign private militias, the practical problem of distinguishing voluntary enlistment from conscription in individual cases would be formidable. Significance of habitual residence. If two conscripting states are prepared to accept the increasingly settled norm that prohibits the double drafting of dual nationals, the question then arises: In which of the two states will the person serve? 108
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110
The treaty could also extend the ban on double drafting to individuals who are citizens of one state and resident aliens of the other. That issue is beyond the scope of this paper on dual nationals. See supra notes 48-53 and accompanying text. Germany is also a party to the 1963 Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, European Treaty Series, No. 043 (done at Strasbourg, June, 1963). Article 5(1) prohibits double conscription of "persons possessing the nationality of two or more Contracting Parties," but Turkey is not a party to this Convention. Thus the 1963 Convention does not prohibit either Germany or Turkey from drafting a dual German-Turkish national who has completed his compulsory military service in the other state. I thank Prof. Rey Koslowski for raising this issue. 101
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As earlier discussion explained, many of the treaties give the appearance of answering this question by reference to habitual residence. They do so in at least two contexts: First, what I have called free choice treaties often provide that a dual national owes military obligations to the nationality state of habitual residence but that the person may fulfill that obligation (or be exempted from it) by declaring a decision to serve in the other nationality state instead. The proviso effectively drains the reference to habitual residence of all practical significance. The person may choose to serve either the residence state or the non-residence state. Habitual residence then affects only the mechanics, not the ultimate outcome. The habitual residence state might be authorized to serve a draft notice, but the individual then decides in which state to serve. Second, the 1977 Protocol to the 1963 Convention, the 1997 Convention, and many of the bilateral treaties prohibit the non-residence state of nationality from drafting dual nationals but then add that even voluntary service in either nationality state exempts the dual national from conscription in the other nationality state. The practical effect, again, is that the dual national has a choice. The reference to habitual residence might affect the mechanics, since the person will never receive a draft notice from the non-residence state, but once more he can enlist in the non-residence state and thereby earn a draft exemption from the residence state. Under either type of prevalent treaty, therefore, the formal references to habitual residence are not significant. As a normative matter, should residence affect the dual national's relative military obligations to his or her states of nationality? The concept of residence as a basis for paramount allegiance has been invoked not only in treaties, but also in official governmental pronouncements and academic commentary.111 To argue that residence should trigger higher obligations, one might summon two different norms. Classical international law emphasizes the link between allegiance and protection.112 Qualified as this link necessarily is in the light of modern human rights limitations, the proposition has often been used to explain citizenship as a bundle of mutually dependent obligations and benefits, of communal responsibilities and membership rights. At the same time, modern writers are increasingly inclined to argue that permanent residence should also be seen as embodying some degree of membership.113 Combining the link between residence and rights with the 111
112
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E.g., United States Dept. of State, 7 Foreign Affairs Manual § 1111.4(c) (dual national owes "paramount" allegiance to state of residence); Martin, supra note 4, at 24-25. E.g., H. Lauterpacht, Allegiance, Diplomatic Protection and Criminal Jurisdiction over Aliens, 9 Cambridge L.J. 330 (1947); G.L. Williams, The Correlation of Allegiance and Protection, 10 Cambridge L.J. 54 (1948). David Martin has offered the domestic equivalent of this view, arguing that the level of procedural protection the government owes a particular class of aliens should depend partly on the strength of that class's commitment to the national community. See David A. Martin, Due Process and Membership in the National Community: Political Asylum and Beyond, 44 U. Pitt. L. Rev. 165 (1983). In the United States, see, e.g., Alexander M. Bickel, The Morality of Consent at 53-54 (1975); T. Alexander Aleinikoff, Citizens, Aliens, Membership and the Constitution, 1 Constitutional Commentary 9 (1990) (portraying lawful permanent resident aliens as members); Gerald M. Rosberg, Aliens and
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link between rights and obligations, one can argue that residence entails obligations. All else equal, therefore, dual nationals should owe greater obligations to the states of which they are both nationals and residents than to the states of which they are merely nationals. But there are also compelling arguments for a residence-neutral, free choice position. This position would depict the dual national as owing equal obligations to all his or her states of nationality. In the event of conflict, the person could be required to choose one state over the other, but the law would not prescribe a particular choice. The individual's preference might well reflect the ties that flow from residence, but it might also reflect other factors, including the closeness of the bonds that the particular individual feels to the respective states and any differences in the perceived burdens. Under this view, the individual decides. The analogy might be to a parent who has time to rescue only one of his or her two children. The law does not require the parent to favor the child who lives in the same household over the child who does not. Which of these two views - the habitual residence approach or the free choice approach - is more convincing? That question itself requires a personal value judgment that this paper does not attempt to make. Rather, the issues will generally be explored under alternative premises when applicable. Voluntary service followed by conscription. Whether to draft a dual national who has already served voluntarily in the armed forces of his other state of nationality presents a different policy tradeoff from the issue of double drafting. Here one can make a more convincing argument for allowing at least the habitual residence state to conscript. Under such a rule, a dual national who does not want to serve twice will not have to, because service in the non-residence state would be voluntary. He would know in advance that foreign military service will not insulate him from conscription in his state of residence. If he nonetheless chooses to serve overseas, it will thus be with the willingness to serve twice. Allowing the residence state to conscript would also be philosophically compatible with the theory, discussed above, that the dual national's primary obligation is to the state of residence. Again, however, there is much to be said for the free choice approach typically embraced in the bilateral treaties. Dual nationals owe allegiance to both their countries. Requiring them to serve in one state but letting them choose which state that will be yields a middle ground result. The person will retain some freedom to serve as his conscience permits but will not be allowed to escape military service entirely. Such an approach would also comport with the 1997 Convention, as well Equal Protection: Why Not the Right to Vote?, 75 Michigan L. Rev. 1092 (1977) (arguing that voting rights should turn on residence, not citizenship); cf. Peter H. Schuck, Membership in the Liberal Polity: The Devaluation of American Citizenship, 3 Georgetown Immigration L.J. 1 (1989) (arguing that differentials between the rights of citizens and the rights of permanent resident aliens have narrowed). Subsequent developments caused Schuck to reassess. See Peter H. Schuck, The Reevaluation of American Citizenship, European Univ. Institute Working Paper, RSC No. 96/26 (1996) (suggesting differentials are expanding again).
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as the 1977 Protocol to the 1963 Convention. As discussed above, these treaties bar states parties from conscripting dual nationals who have served voluntarily in the armed forces of their other states of nationality. If a state chooses to exempt all dual nationals who have previously served in the military for specified durations, regardless of whether their service was voluntary or compulsory, then no definition of voluntariness will be necessary. In contrast, states that choose to allow conscription after voluntary service in other states of nationality but to prohibit conscription after compulsory service will need to define voluntariness. There is a potential ambiguity here. Sometimes people who are liable to conscription decide to enlist rather than wait to be drafted. Should such an enlistment be regarded as voluntary or compulsory? In theory, the law could require an individualized determination of whether the person would have been drafted had he not enlisted. Another theoretical option would be to base the determination on the individual's subjective intent - whether he believed he would have been drafted, or whether his motive for enlistment was to preempt conscription. Even if these theories are thought to be conceptually sound, however, they would create burdensome logistical problems for the administrators and speculative, probably highly inaccurate results. Far simpler and more workable - if voluntariness is to be relevant at all - would be a flat rule that the enlistment of a person who is legally eligible for an active draft is treated in the same way as compulsory service. Age deferments for dual nationals. Both article 6(1) of the 1963 Convention and article 21(3)(a) of the 1997 Convention allow dual nationals of states parties to freely choose, up to age 19, to serve in the non-residence state rather than be drafted by the residence state. Although they do not explicitly exempt dual nationals from conscription up to age 19, such an exemption is probably implicit. Without it, the residence state could frustrate the free choice that the Conventions explicitly provide; it would need only to draft the person before age 19, a result the parties obviously meant to avoid. Article 2 of the 1930 Hague Protocol had taken a different tack. It explicitly exempts the dual nationals of states parties during their minority, but only if at least one of the states allows the person to renounce its nationality upon attaining the age of majority. The premise - not reflected in the later European conventions - appears to be that a dual national can escape conscription only by renouncing his nationality. If two states are already parties to a bilateral treaty that prohibits the nonresidence state from conscripting dual nationals, and the treaty contains no provision requiring the residence state to exempt those dual nationals who serve voluntarily in the non-residence state, then there is no point in adding an age deferment clause. While the person is below the draft age set by the residence state, neither state may draft him, and once the person reaches that age, there is no policy reason to defer conscription. If in contrast two states are already parties to a free choice treaty, the treaty should, and normally would, specify the age by which the person must make the 104
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choice. Otherwise the person would enjoy a permanent exemption from both drafts. To make the choice a real one, the treaty should explicitly defer conscription until the attainment of the specified age. Rather than fix the age at 19, as the multinational conventions do, I would suggest that the deferment and decision period continue until the higher of the draft ages of the two states. That approach would secure the person's ability to visit family members in either state, before reaching the relevant age, without fear of conscription. If there is no treaty at all between the two states, and even if the prospects for a far-reaching accord on this subject are sparse, it might still be worth trying to negotiate at least a limited agreement that neither state will draft dual nationals until they have reached the higher of the draft ages set by the two states. Although narrow, even this type of agreement would safeguard the person's ability to visit his non-residence state of nationality while he is above the draft age of the non-residence state but below the (higher) draft age of the residence state. Germany and Turkey are a case in point. They are not parties to any common treaty on the military obligations of dual nationals, and both states currently conscript. Germany generally drafts only those Germans who reside permanently in Germany.114 By way of exception, however, a German who formerly resided in Germany or holds a German passport or has placed himself under the protection of Germany in some other way has "dormant" liability to conscription; such a person may be conscripted upon return to Germany.115 Turkish conscription law, in contrast, contains no such exemption for non-residents; hence, dual nationals who reside in Germany but visit Turkey after attaining draft age are at risk. It is admitted that a draft deferment of the kind proposed here treats dual nationals more favorably than otherwise similarly situated mono-nationals. Often, though, the same events that trigger dual nationality also generate lasting ties to both states, including the ancestral homeland. A draft deferment reasonably accommodates the competing interests. The person must still fulfill his military obligations, but the deferment avoids the hardship that ensues when the combination of the two states' laws makes visitation risky. Dual nationals who are not subject to conscription in their states of residence. Many individuals are not subject to conscription at all in their states of residence, either because the state simply does not conscript, or because the person is exempt for medical or other personal reasons.116 If such a person is a dual national, questions can arise concerning draft liability in the other state of nationality. Of course, if the non-residence state also has no draft in place, or if the individual is similarly exempt under its law, no issue arises. But if the non-residence state has a draft, and the 114 115
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Wehrpflichtgesetz§ l ( l ) ( l ) . Ibid. § 1(2). As observed earlier, a dual national who enlists voluntarily in the armed forces of his other state of nationality can be immune from conscription, depending on the applicable domestic laws and treaties. In this subsection, however, I am referring to those who are not subject to conscription in the state of residence even though they have not served anywhere else.
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person does not fit any of its exemptions, will the person be subject to conscription in the non-residence state? This issue will become increasingly vital as the general rise in dual nationality coincides with the trend, among the immigrant-receiving states of North America and Europe, to phase out conscription. Some of the existing treaties address these issues either explicitly or implicitly. Article 1 of the 1930 Hague Protocol simply bars the non-residence state from drafting the dual national at all, provided that the person is "in fact most closely connected with" the residence state. A bilateral treaty between Belgium and the Netherlands contains a similar general prohibition,117 but since both states then practiced conscription, the issue of how to treat a no-draft state probably was not contemplated. Under a bilateral treaty between the Netherlands and Italy, a person who is "not liable to military service" in the residence state is regarded as having fulfilled all military obligations in the non-residence state.118 This language is broad enough to encompass both the person whose state of residence does not draft at all and the person who is individually exempt. Under article 2 of the 1977 Protocol to the 1963 (European) Convention, and similarly under article 22(b) of the 1997 Convention, a dual national who resides (until a certain age to be specified by each state) in a state of nationality that does not require military service is regarded as having fulfilled all military obligations in the non-residence state. Both article 2 of the 1977 Protocol and article 22(a) of the 1997 Convention specifically apply the same rule to the dual national who is medically or otherwise exempt from conscription in the residence state. Several bilateral treaties do so as well.119 Whether a dual national who is not subject to conscription in the residence state should be liable to conscription in the non-residence state is a difficult issue. Arguments in favor of liability can certainly be constructed. When states decide whether to conduct a draft at all and, if so, whom to exempt, they take into account their military needs, the size of the available pool, and the specific tasks that draftees would be assigned. The state's decisions also reflect the prevailing political philosophy. All these factors vary from state to state. When the circumstances or viewpoints of the residence and non-residence states diverge, and the dual national willingly accepts from the non-residence state the same benefits of nationality as that state's mono-nationals do, the argument would run, then that individual should assume the same obligations as the mono-nationals. Fairness aside, there is an instrumental argument against exempting dual nationals under these circumstances. A rule that immunizes dual nationals from conscription if they take up residence in another, nonconscripting state of nationality could encourage young men to migrate solely to avoid the draft. This problem is potentially significant in Europe especially. Europe is an attractive destination for migrants to start with, and the opportunity for free movement within the European Union also 117 118 119
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No. 2936, arts. 1, 2 (see Annex, infra). No. 6468, art. 6 (see Annex, infra). No. 6428, art. 5; No. 15487, art. 5; No. 16191, art. 6 (see Annex, infra).
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creates opportunities for naturalization and, hence, dual nationality. Since some EU states require military service and others do not, young males from the former states might have an incentive to migrate to the latter states. The major impediment, of course, is that dual nationality, not merely EU citizenship, would be necessary to trigger the exemption discussed here,120 and naturalization is always a multi-year process. On the other hand, the multitude of treaties discussed above suggests a widespread willingness among affected states to recognize immunity from conscription in this situation. There is no conspicuous interest in repealing the exemption. Moreover, there are valid policy arguments in favor of the exemption. The first policy argument is a practical one. Without the kind of exemption discussed here, the young male dual national who resides in a non-conscription state would face a trilemma. He could (a) renounce his nationality of the non-residence state (if the latter even allows a draft-eligible national to renounce, a point taken up in subsection II.D below); (b) refrain from visiting the non-residence state, a potentially inhumane option when family members still live there; or (c) serve in that state's military. For reasons just discussed, one can certainly argue that the last option is not unfair. To the extent that young men reject that option, however, and choose instead not to visit their family members, family relations are impaired. A second argument might be advanced on behalf of those dual nationals who are medically exempt from conscription in the residence state. (This argument does not apply to those whose states of residence simply do not require military service at all.) A person who is medically exempt from the draft is also medically ineligible for voluntary enlistment. If the two states in question otherwise accept a free choice arrangement for dual nationals, and if it is decided that medical exemptions in the state of residence will not carry over to the non-residence state, then medically exempt dual nationals will be deprived of the freedom of choice that non-exempt dual nationals have. The former would be required to serve in the non-residence state and the latter would not. Dual nationals who reside in third states. The preceding discussion assumes the dual national resides in one of the two (or more) states of nationality. But what are the military obligations of a dual national who resides in a third state? The 1930 Hague Protocol does not speak specifically to that question. Under article 2, however, conscription is deferred, until the age of majority, in any nationality state that permits renunciation of nationality upon attaining majority. Since this provision contains no limitations relating to residence, it presumably covers the dual national who resides in a third state, albeit subject to the condition concerning the permissibility of renunciation. That condition does not appear in the 1963 Convention, which is also more specific. Under article 6(2) of that Convention, a dual national who ordinarily resides in a state party of which he or she is not a national - or, for that matter, in a state that is not a party to the Convention at all 120
This is also true under both article 2 of the 1977 Protocol and article 22 of the 1997 Convention. 107
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- may freely choose in which state party of nationality to serve. The 1997 Convention, article 21 (3)(b), takes the same approach. Most of the bilateral treaties say nothing about the dual national who resides in a third state, but several provide the same choice that the 1963 and 1997 Conventions do.121 If neither state of nationality conscripts, then no problem exists. The same is true if, like Germany,122 the states of nationality do not generally conscript individuals who permanently reside overseas. But if both states of nationality conscript even those nationals who reside overseas, there is potential for conflict. On the assumption that the states wish to honor the prohibition against double conscription, the issue is which state will receive the person's services. Because neither state of nationality has a superior moral claim to the services of a dual national who resides in a third state,123 the approach taken in the existing treaties seems sensible. The individual is, and should be, entitled to choose in which state of nationality to serve. The treaty should specify an age by which the person is required to decide, and I would suggest that the specified age be the higher of the draft ages of the two nationality states. Because the states deem the person capable of serving in the military at these ages, they would likely also deem the same person mature enough to decide in which of the two states' militaries to serve. It seems unnecessary to wait until the age of majority; the person is being asked only to elect one of two military service options, not to elect one of two lifelong nationalities. Suppose only one of the two nationality states conscripts, or only one conscripts non-residents. Should the dual national who resides in a third state be permitted to enlist voluntarily in the nationality state that does not conscript, and then avoid conscription by the other nationality state? The answer would seem to be yes. If, as discussed earlier, treaties generally allow the dual national to perform military service in a non-residence state of nationality rather than in the nationality state of residence, then, a fortiori, treaties should allow the dual national to choose to serve in one non-residence state of nationality rather than in another non-residence state of nationality. There is at least one other permutation. Suppose the third state itself drafts resident aliens, or the person enlists voluntarily in the armed forces of that third state. Should such military service immunize the person from conscription in the two nationality 121
122 123
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No. 6428, art. 2; No. 10709, art. 2; No. 15487, arts. 2, 3; No. 16191, arts. 2, 3; No. 22415, art. 2 (see Annex, infra). Wehrpflichtgesetz, § 1(1)( 1). There are other possible ways to break the tie, such as assigning priority to the state in which the person was born, or the state of which one or both parents are nationals, or the state in which the person last resided before taking up residence in the third state. Variations of these themes appear in a 1957 bilateral treaty between the former Soviet Union and Bulgaria that required dual nationals to elect one nationality or the other after reaching the age of majority. See Bar-Yaacov, supra note 4, at 83-84. Whatever the usefulness such approaches might have had in eliminating dual nationality in an age in which it was strongly disfavored, they seem less compelling today in the context of whether to allow the dual national to choose in which military to serve.
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states? The argument for immunization is stronger in the conscription scenario, where the individual had no option other than to abandon his or her residence, than in the enlistment scenario. In each instance, however, the bonds associated with permanent residence must be balanced against those associated with nationality. This paper takes no position on that balancing. Because dual nationals of two particular states might end up residing in any number of third states, and because harmonious resolution requires the cooperation of the third state, this problem seems better left to multilateral conventions than to bilateral treaties. C. Loss of Nationality for Reasons Related to Military Service Loss of nationality can occur at the initiative of the individual or at the initiative of the state. In the context of military service, this distinction generates two broad, parallel issues: First, may a dual national who is subject to military service obligations in at least one of the states of nationality voluntarily renounce that nationality? Second, may a state take away the nationality of (i.e., denationalize) a dual national who serves in a foreign military? The two questions will be considered sequentially. 1. Voluntary renunciation (expatriation) The early English common law recognized no individual right to renounce one's citizenship without the consent of the sovereign; the governing doctrine was perpetual allegiance to the state.124 Several European states asserted the same position.125 In the nineteenth and twentieth centuries the doctrine of perpetual allegiance gradually eroded. The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, though drafted with the purpose of minimizing the incidence of dual nationality, contained only a meek recognition of the right to renounce. The relevant provision was limited to those who acquire dual nationality without voluntary acts on their parts, and even then was drafted in such a way as practically to require the consent of the state.126 The commonly held view today is that the individual has a qualified right to renounce his or her nationality. The Universal Declaration of Human Rights in article 15(2), says: "No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."127 This English language version of the provision might be read as recognizing a right to renounce one's nationality, but the ambiguous placement of the word "arbitrarily" leaves unclear whether the provision prohibits all denials of the right to change nationality or merely arbitrary denials. The French language version strongly suggests the latter interpretation.128 Article 2 of the 1963 Convention more firmly recognizes 124 125 126 127 128
E.g., Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 246 (1830); see generally Gordon, supra note 32, at 319. See the text accompanying supra notes 32-35. See Bar-Yaacov, supra note 4, at 80-81 (discussing article 6). U.N.G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948) (emphasis added). Bar-Yaacov, supra note 4, at 172.
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an individual right to renounce one's nationality, subject to important qualifications considered below. The same is true of article 8 of the 1997 Convention. Many treaties, in fact, affirmatively promote renunciation as a cure for dual nationality. In the wake of the Fenian controversy of the 1860s,129 and as a way to minimize dual nationality, the United States entered into a series of agreements known as the "Bancroft Treaties." These treaties authorized, and often required, surrender of citizenship upon foreign naturalization.130 Many other bilateral treaties required certain dual nationals to decide, shortly after attaining the age of majority, which of their citizenships they would keep.131 In the United States, an 1868 law entitled An Act Concerning the Rights of American Citizens in Foreign States declared expatriation "a natural and inherent right of all people."132 Current United States law specifically permits a person to renounce his or her United States nationality by performing any of several enumerated acts with the specific intent to renounce.133 In contrast, German law permits renunciation only with the consent of the government (and then subject to many qualifications).134 Of the many qualifications that the various authorities impose on the right to renounce one's nationality, one of the more common is that the person not be rendered stateless as a result. In practice, this qualification means that one must be a dual national (or simultaneously acquire a new nationality) to renounce one's nationality. Illustrations include article 2(1) of the 1963 Convention, article 8(1) of the 1997 Convention, and some domestic law.135 In contrast, United States law contains no such limitation.136 Since in this paper dual nationality is assumed, the problem of statelessness requires no further discussion. Of the other common qualifications imposed on the right to expatriate, the one most directly relevant here concerns military service. The issue can surface in two ways. A person who possesses only one nationality might want to relinquish it in order to attain naturalization in another state. Or a dual national might wish to give up one of his or her existing nationalities. German law describes these processes as "expatriation" and "renunciation, " respectively.137 It prohibits expatriation of persons who are liable for military service unless the Ministry of Defense declares that it has no objections.138 Further, it prohibits renunciation whenever expatriation 129
130 131 132 133 134 135 136 137 138
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See Abner J. Mikva & Gerald L. Neuman, The Hostage Crisis and the "Hostage Act," 49 U. Chi. L. Rev. 292, 307-29(1982). See Gordon, supra note 32, at 322. Bar-Yaacov, supra note 4, at 83-84. 15 Stat. 223, ch. 249 (July 27, 1868). 8 U.S.C. § 1481. Staatsangehorigkeitsgesetz, § 26. Ibid. § 26(1). 8 U.S.C. § 1481. Staatsangehorigkeitsgesetz, §§ 22, 26. Ibid. §22(2).
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would not have been permissible, unless the person has resided abroad for at least ten years and, if otherwise liable for military service, has already served in his other nationality state.139 Turkish law produces the same result as German law on this issue. To abandon Turkish nationality, a person has to have completed all reserve military service, but the Ministry of National Defense has the discretion to waive this requirement. The person must also have, or show convincingly that he or she will acquire, the nationality of another state.140 According to Professor Hammar, several other states similarly refuse to recognize renunciation of citizenship when the applicants are liable to conscription.141 The United States, in contrast, allows renunciation whenever the person commits any of several specified acts with the intent to relinquish citizenship; the law does not disqualify persons liable to conscription. International law so far has had little to say on the specific issue of voluntary expatriation by draft-eligible dual nationals. Article 2 of the 1930 Hague Protocol provides that, if the law of a state allows a person to expatriate upon attaining majority, then the state must exempt that person (typically a dual national) from conscription during minority. This provision suggests that the states parties intended to leave to the individual states the basic decision whether to permit expatriation in the first place. The normative question is a difficult one. Should a dual national be allowed to renounce the nationality of one of the states if the consequence (and perhaps the purpose) is to avoid military service in that state? As discussed earlier, one might regard citizenship as a matter of individual right, to be retained or relinquished at the discretion of the citizen, or one might regard it as a compact that requires the continued assent of the citizen and the state. It seems extreme, however, to assert the unilateral right of a state to declare an unwilling person to be its citizen and then to impose whatever military or other obligations its citizenship laws entail. In a case where renunciation would leave the person stateless, perhaps the international consensus against statelessness is compelling enough to override the autonomy of the individual. But when the person who wishes to renounce is a dual national, statelessness is not a concern.142 139
140 141 142
Ibid. § 26(2). German law also implicitly endorses other states' decisions to practice similar policies. To receive naturalization in Germany, a person must give up his or her prior citizenship. The applicant is exempt from this requirement if the foreign state's willingness to recognize the person's loss of citizenship is conditioned on his performing military service, but only if the person's high school education has been predominantly in Germany, the person has assimilated into German living conditions, and he or she is old enough to be conscripted in Germany. Significantly, without these personal ties to Germany, German law would otherwise credit the other state's refusal to recognize the person's voluntary expatriation because of liability to military service. Turkish Nationality Act, No. 403, art. 20, Turkish Official Gazette No. 11638 (Feb. 22, 1964). Hammar 1990, supra note 5, at 116-17. Professor David Martin, reviewing an earlier draft, questioned why, if the international norm against statelessness can override an individual's autonomy, a norm against freeloading should not have 111
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Of course, the fact that a state allows its citizens to leave the flock does not mean the state must be gracious about it. The United States, for example, permits voluntary renunciation of citizenship, but it has imposed various sanctions on persons who relinquish their citizenship for the purpose of avoiding United States federal income tax. The sanctions include ineligibility to return,143 embarrassment through the publication of expatriates' names in the Federal Register,144 and various tax penalties.145 Article 3 of the 1963 (European) Convention, to which the United States is not a party, prohibits states from imposing any special tax or charge for renunciation. Whether the special U.S. tax provisions for expatriates are the kind of practice that the Convention means to prohibit is not clear. In any case, a state that permits renunciation even by persons liable for military service remains free to impose sanctions, including possibly deportation if the person is present in its territory or exclusion if the person is not. Whether a state ought to impose such sanctions is taken up below. The preceding discussion considered whether a dual national's freedom to relinquish one of his or her nationalities should be constrained when military service is owed. A few other qualifications, themselves specially relevant in the conscription context, must also be considered. One qualification surfaces in wartime. Even if a state permits draftable dual nationals to expatriate, it might well make exceptions during times of war. United States law contains no such qualifier146 but in that respect appears to be unusual. An earlier British case reached a contrary result, declaring that "a person cannot divest himself of his British nationality during time of war, and become a subject of an enemy State."147 There the person resided in England, a factor considered separately below, but the court's reasoning did not rely on place of residence. Whether the court would have reached the same result if the particular war had been against a third state, rather than the defendant's other state of nationality, is not known. It appears that many states now deny expatriation in time of war and do not make exceptions for dual nationals unless the war is between the two states of nationality.148 A potentially trickier variable is place of residence. Article 2 of the 1963 Convention
143 144 145
146
147 148
112
similar effect. The point is well taken, but my view is that a person who is willing to give up future rights along with future obligations is not a freeloader. 8 U.S.C. §1182(a)(10). 26 U.S.C. § 6039G(e). For a sample, see 64 Fed. Reg. 3339 (Jan. 21, 1999). See Alice G. Abreu, Taxing Exits, 29 U.C. Davis L. Rev. 1087 (1996); Jeffrey M. Colon, Changing U.S. Tax Jurisdiction: Expatriates, Immigrants, and the Need for a Coherent Tax Policy, 34 San Diego L. Rev. 1 (1997). No statutory provision that I could find establishes such an exception. Moreover, in Kawakita v. United States, 343 U.S. 717 (1952), where the Court upheld the treason conviction of a dual U.S.Japanese national for acts committed in Japan during World War II, the Court relied explicitly on the fact that the defendant could have renounced his United States nationality (even, apparently, in wartime). Ex parte Freyberger [1917] 2 K.B. 129. Bar-Yaacov, supra note 4, at 61.
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imposes a narrow constraint on state discretion. It requires the state to grant the expatriation of an adult dual national, but only if the person has resided outside the territory of the state for at least ten years and currently resides in the state whose nationality he or she wishes to retain. Article 1 of the 1977 Protocol broadens the constraint on state discretion. It requires the state to grant the expatriation of an adult dual national as long as the person resides outside the territory of that state. Article 8(2) of the 1997 Convention takes the same approach as the 1977 Protocol. Thus, even the more liberal approach embodied in the 1977 Protocol and 1997 Convention leaves states free to deny expatriation to draft-eligible dual nationals who reside within their territories. Should a dual national have a right to expatriate even if he is liable to conscription and is a resident of the state? To be sure, the person's residence complicates matters. While any national - dual or mono, resident or non-resident - potentially benefits from his or her link to the state, residents, whether nationals or not, especially benefit. The state might well feel that, as long as the person voluntarily resides in its territory, he or she has reciprocal obligations to fulfill. But what, precisely, are those obligations? Presumably they include conformity with all civil and criminal laws, probably taxation, and any other duties that the state imposes on permanent residents. Why should the person be subject to the additional duties imposed on citizens if he or she is willing to forego whatever additional benefits arise from citizenship? To put the point another way, once the state recognizes the expatriation of a dual national who resides in its territory, the person becomes an alien. The state might choose to conscript resident aliens, in which case the person will not escape military service by renouncing citizenship. If the state chooses not to conscript resident aliens, there is no inherent reason to treat an alien who was formerly a citizen and who wishes to reside in the state differently from a person who was always an alien and who wishes to reside in the state. If the person meets the criteria for admission, he or she should be allowed to remain and should be put to the same obligations as other permanent resident aliens. If the person does not meet those criteria, the state is free to expel the person, though I suggest below that before doing so it should at least consider the roots that the person's prior residence has created. And if the state concludes that the presence of persons who have consciously renounced citizenship would be demoralizing or otherwise detrimental, it might choose to expel former citizens on that ground alone. The salient point is that one who expatriates sheds not only obligations but also rights, including the unqualified right to continue to reside in the state's territory. One possible response might be that the person who expatriates on the eve of conscription has already enjoyed the accumulated benefits of citizenship and thus has already accrued an obligation to serve in the military at the appointed age. Such individuals, the argument would run, should not be allowed to eat their dinners and then flee the restaurant before the bill arrives. Typically, however, because the age of conscription almost always precedes the age of majority, the expatriates in question are people who could not have renounced earlier because they were children. 113
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That observation leads to one final qualification. As just discussed, article 2 of the 1963 Convention requires states parties to honor the expatriation wishes of certain dual nationals who are "of full age. " Given the complex and lifelong consequences of a decision to expatriate, the Convention sensibly permits states to deny the expatriation requests of children. In the light of that power, however, article 2 of the 1930 Hague Protocol is highly commendable. This provision requires states to defer conscription until the age of majority in such cases. Thus, subject to certain qualifications, the view expressed here is that dual nationals should be free to renounce one of their nationalities even while otherwise liable to military conscription. The most compelling qualifications are those for children and for special circumstances such as war. Although many states further qualify the right of expatriation by confining it to non-residents, I suggest there is no need for a blanket limitation along those lines. A state can always choose to accomplish the same result by expatriating and then deporting (thereby effectively making the person a nonresident), but it should not do so without weighing the compassionate factors that flow from prior long-term residence. In an earlier draft of this paper, I suggested that, in addition to weighing the compassionate factors, a state should also refrain from deporting a resident expatriate unless there is an affirmative, compelling reason for deportation. Professor David Martin, reviewing that draft, disagreed. He argued that the individual's unwillingness to contribute military service (assuming the absence of conscientious objection) is reason enough.149 Given the further qualification discussed below concerning the weighing of any relevant compassionate circumstances, I found his point persuasive and consequently have deleted my suggestion that a compelling reason be required. Professor Martin also took issue with my emphasis on roots. He asked rhetorically how the person's roots could be deep enough that he should be spared deportation but not "deep enough to make him willing to contribute."150 The question is a fair one. I concede that a state can rationally regard the person's willingness to expatriate, coupled with a decision not to honor his military obligation, as evidence of shallow roots. My view, however, is that such evidence is not conclusive. Countervailing circumstances might be present. Whatever the state's attitude toward resident expatriates, expulsion is a large step. Before taking it, the state should at least consider any evidence of countervailing equities that the person offers. 2. Denationalization If voluntary renunciation of nationality is one side of a coin, the flip side is denationalization - a term I shall use to denote the unilateral decision by a state to terminate a person's nationality against his or her will. Since many of the treaties discussed in this paper permit dual nationals to fulfill their military obligations to one state of nationality by serving in the armed forces of the other state of nationality, the 149 150
114
E-mail from David A. Martin to author, 15 Sept. 2000. Ibid.
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particular concern here is the possibility of denationalization as a consequence of foreign military service.151 No treaties of which I am aware require states parties to denationalize individuals who perform foreign military service. The real issue, rather, is whether treaties permit states parties to do so (and, to the extent permitted, whether states in fact denationalize in such circumstances). The various multinational conventions and bilateral treaties seem to fit several distinct patterns: - Article 1 of the 1930 Hague Protocol exempts dual nationals from conscription in non-residence nationality states but, at the same time, preserves states' powers to denationalize individuals who invoke that exemption. At least one bilateral treaty follows the same approach.152 - Some bilateral treaties take precisely the opposite tack. They clearly prohibit the states parties from denationalizing dual nationals who serve in the armed forces of one of the nationality states.153 - Regrettably, the vast majority of the bilateral treaties and even the major European regional conventions are imprecise and ambiguous on this crucial issue. 154 Among agreements of the third type, two different formulations are common. The most common formulation reads: "The provisions of the present Convention shall in no way affect the juridical status of the persons concerned in the matter of nationality."155 What does this mean? One interpretation is the literal one - that the convention simply does not speak to the issue of loss of nationality. Under that interpretation, each state party decides on its own whether it wishes to denationalize dual nationals who invoke the treaty exemption from military service. A second interpretation is precisely the opposite - that an individual's use of the treaty exemption to avoid military service in one of the nationality states does not "affect [his] juridical status ... in the matter of nationality. " Under that interpretation, the states parties have agreed not to denationalize under such circumstances. Interestingly, one agreement that uses this latter language is a 1982 treaty between 151
152 153 154
155
A converse possibility, not explored further in this paper, is denationalization because of one's refusal to fulfill his military obligations. In Turkey, for example, the Council of Ministers may take away a person's citizenship either for military desertion or for the unexcused refusal to respond to a summons to perform reserve military service following a declaration of war. Turkish Nationality Act, art. 25(d,e,f), Law No. 403 (Feb. 11, 1964), in Turkish Official Gazette, No. 11638 (Feb. 22, 1964). No. 22415, art. 7 (see Annex, infra). E.g., No. 1094, art. 1; No. 2936, art. 13; No. 8698, art. 4 (see Annex, infra). The ambiguities are subtle, and I am especially grateful to Julie Strube for her insight in noticing and articulating them. Examples of this language, or in some instances language extremely similar, include: No. 737, art. 5; No. 3516, art. 7; No. 3786, art. 9; No. 5004, art. 9; No. 5195, art. 8; No. 6163, art. 3; No. 6428, art. 8; No. 6554, art. 3; No. 7000, art. 3; No. 9077, art. 4; No. 10709, art. 9; No. 15487, art. 12; No. 16191, art. 12; No. 23004, art. 3 (see Annex, infra).
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France and Tunisia.156 Article 7 begins with "The provisions of this Convention shall in no way affect [residence or employment rights or] nationality, " but adds "which shall continue to be governed exclusively, with respect to French nationality, by French law and, with respect to Tunisian nationality, by Tunisian law." The latter portion of the quoted provision makes clear that the denationalization decision is left to the individual states. On the assumption that the drafters did not intend the sentence to be internally contradictory, the initial portion of the quoted provision must be construed to mean that the Convention itself does not affect nationality. Whether it follows that that language means the same thing in treaties in which it stands alone is not entirely clear. I would suggest that it does, because of a subtle but seemingly significant difference in the verbal formulations employed by one other set of treaties. This other set of treaties includes the 1963 Convention, article 6 of which provides various options for dual nationals to fulfill their military obligations in states other than the states of residence. Article 6(6) then adds: "The application of this article shall not prejudice, in any respect, the nationality of the persons concerned" (emphasis added). By adding the phrase "the application of, " rather than saying that the Convention itself shall not prejudice nationality, the drafters appear to have made a conscious decision to depart from the 1930 Hague Protocol. The wording suggests that a person will not lose his nationality solely by invoking the conscription options that article 6 provides. The 1997 Convention is essentially similar. Article 7(l)(c) generally permits denationalization of individuals who serve in the armed forces of foreign states, but article 21(3)(f) adds the following qualification, limited to dual nationals: "The application of this article shall not prejudice, in any respect, the nationality of the persons concerned. " At least one bilateral treaty uses the same language.157 Actual state practices vary. In the United States, with the single exception of revocation of a faulty naturalization,158 the Constitution entirely prohibits denationalization, in the sense in which this paper uses that term - i.e., the state's unilateral elimination of nationality against the will of the citizen.159 If a United States national voluntarily serves in a foreign military as an officer or while that state is engaged in hostilities against the United States, and the person does so with the specific intent to relinquish United States nationality, expatriation will result.160 Absent such an intent, however, nationality will not be lost. The Constitution of El Salvador does 156 157 158 159
160
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No. 22415 (see Annex, supra). No. 6468, art. 10 (see Annex, infra). 8 U.S.C. § 1451. The United States Supreme Court took the first major step toward this constitutional conclusion in Afroyim v. Rusk, 387 U.S. 253 (1967). The issue was settled definitively in Vance v. Terrazas, 444 U.S. 252 (1980). The current statute reflects this principle, recognizing loss of citizenship only when the individual commits one of a list of specified acts with the specific intent to relinquish United States nationality. 8 U.S.C. § 1481 (a). 8 U.S.C. §1481(a)(3).
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permit denationalization but only on enumerated grounds, and service in a foreign military is not one of the listed grounds.161 In contrast, the laws of other states permit denationalization because of foreign military service, under varying circumstances. The Mexican Constitution prescribes loss of citizenship when a person voluntarily gives official services to a foreign government without permission from the relevant Mexican authorities.162 Although military service clearly constitutes official service, the qualifier "voluntarily" implies that compulsory military service - for example, because of laws that conscript dual nationals or permanent resident aliens - would not result in denationalization.163 German law permits denationalization when a dual national voluntarily enlists in the armed forces of his or her other state of nationality without the consent of the German Ministry of Defense; such consent can be provided by treaty.164 Turkish law prescribes loss of nationality if a person "performs services" for a foreign state whose government is hostile to Turkish interests and the person fails to terminate the services within a reasonable time (not to exceed three months) after a request from the government.165 The same is true when a person willingly continues, without the permission of the Turkish government, to perform any kind of service for a state that is at war with Turkey.166 For purposes of both denationalization grounds, service in a foreign army clearly constitutes "performing services."167 The German law was a direct response to the decisions of many German-Yugoslav dual nationals to fight on the side of the Yugoslav army, during the Kosovo conflict, against the western alliance of which Germany was a member. At this writing, the Netherlands is considering a similar response, but through means more narrowly tailored to the rationale for the law. The proposed Dutch legislation would denationalize anyone who voluntarily enters the military service "of a State involved in an armed conflict with the Kingdom or with an alliance of which the Kingdom is a member. " Unlike the German law, the Dutch bill does not extend to military service in states with which the Netherlands is at peace. Several other European states have or are considering other variations of such legislation.168 Denationalization, both generally and with specific respect to foreign military service, presents difficult normative questions. Answers are highly dependent on one's conception of citizenship and on one's preferred theories for loss of citizenship. 161
162 163 164 165
166 167
168
Constitution Politica de la Republica de el Salvador, art. 75, . Constitution Politica de los Estados Unidos Mexicanos, art. 37. E-mail from Mexican attorney Carlos Narvaez-Hasfura to Trisha Kelly (Mar. 7, 2000). Staatsangehorigkeitsgesetz, § 28. Turkish Nationality Act, art. 25(a), Law No. 403 (Feb. 11, 1964), in Turkish Official Gazette, No. 11638 (Feb. 22, 1964). Ibid. art. 25(b). Regulation [of Council of Ministers] on the Implementation of the Turkish Nationality Act, Turkish Official Gazette, No. 11742 (Jan. 7, 1964), art. 36/b. See the excellent summary by Gerard-Rene de Groot, Loss of Nationality: A Critical Inventory, this volume. 117
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The general validity of denationalization hinges on, among other things, whether one envisions citizenship as an individual right or as a compact that requires the mutual assent of the individual and the state. If citizenship is a matter of right, then by definition the state may not denationalize anyone, at least not without invoking the fiction that the commission of particular acts conclusively signifies an intention to renounce one's citizenship. If instead citizenship is conceived as a compact between the individual and the state, the validity of denationalization depends on the assumed terms of that compact. If the terms are that citizenship continues only for as long as the individual and the state both assent to its continuation, then denationalization makes sense, provided the state has a justification that comports with international law and the individual is not rendered stateless. The latter condition, of course, is not an issue when the affected individual is a dual national. But if the terms of the compact require that, once it comes into existence, it does not terminate without the agreement of both parties, then denationalization on any ground is invalid. As this discussion suggests, therefore, general theories of citizenship are inconclusive, regardless of the particular ground invoked for denationalization. More promising, perhaps, is to start with specific theories for denationalization. Professor T. Alexander Aleinikoff has offered three possibilities - lack of allegiance, punishment, and public order.169 If one accepts dual nationality in the first place, and if one further accepts that military service is an obligation that a state can legitimately impose on its nationals, then it seems difficult to equate military service in one state of nationality with lack of allegiance to the other one - at least when the interests of the two states are not antithetical. This conclusion seems reasonable even when the particular military service was voluntary; it seems especially so when the service was compulsory. For the same reason, the punishment rationale seems inapposite. What wrong has the person committed? The public order rationale is the most substantial in the present context. One component of a state's strategy for maintaining public order is its military. Depending on its circumstances, a state might reasonably decide that conscription is essential to its ability to assemble an adequate military. If the state's domestic law or treaty obligations exempt from conscription dual nationals who have served in the armed forces of their other states of nationality, then such service does indeed shrink the drafting state's pool of available conscripts. If that factor reaches such a level that the state feels its ability to maintain public order is at serious risk, one might argue that the answer is to reconsider the policy of granting exemptions for dual nationals rather than to denationalize those who exercise their legal options. In fact, as noted earlier, many bilateral treaties contain derogation clauses for emergencies, including specifically mobilization and war. One important caveat is required. The above discussion assumes the two states of 169
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T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. 1471, 1473-75 (1986).
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nationality are not at war with one another. If they are, then of course the picture changes. The next subsection takes up that subject. D. Armed Hostilities Between Two Dual Nationality States As previous discussion noted, internal armed conflicts have proliferated at the same time that a combination of globalization, democratization, and the emergence of security communities has made international wars blessedly rare. Wars between relatively affluent immigrant-receiving states and any of the particular states from which they receive large numbers of immigrants are virtually unheard of. No one today expects the United States to go to war against Mexico or Canada or the United Kingdom, or Germany against Turkey, or Australia against its Pacific neighbors. Nor does anyone predict impending war between or among member states of the European Union. And since it is international migration that in turn largely spawns dual nationality, war between any two states that share large numbers of dual nationals is especially unlikely. Consequently, the problem of how to treat dual nationals when their two states of nationality wage war against one another is, fortunately, a small one. In the interest of completeness a few observations are worth making here, albeit briefly. On one point the law is settled: International law forbids states from compelling any persons - whether dual nationals or mononationals - to take up arms against their other states of nationality. This principle was first codified in article 23 of the Annex to the 1907 Hague Convention Respecting the Laws and Customs of War on Land.170 Although not all the world's nations have ratified it, the Convention appears to have attained the status of customary international law.171 A more significant issue is the opposite one. Suppose a dual national voluntarily takes up arms for one of his states of nationality against his other state of nationality. Does he, and should he, face sanctions in the state against whom he has served? In particular, does the person face either loss of nationality or criminal prosecution for treason or other offenses? With respect to loss of nationality, the preceding subsection on denationalization for foreign military service supplies part of the answer but not all of it. As that discussion explained, the various multilateral and bilateral agreements range from clearly permitting denationalization because of foreign military service, to probably permitting it, to probably prohibiting it, to clearly prohibiting it. Those agreements that are interpreted to permit states parties to denationalize dual nationals who voluntarily perform military service will obviously permit denationalization when 170
171
Done in the Hague, Oct. 18, 1907, reproduced in 36 Stat. 2277, 2302 (United States) and in James Brown Scott, The Hague Peace Conferences of 1899 and 1907 at 368, 389 (Johns Hopkins Press, Baltimore, 1909). See the judgment of the International Military Tribunal at Nuremberg, In re Goering et al. (Oct. 1, 1946), reproduced in Jordan J. Paust et al., International Criminal Law Cases and Materials at 712, 716 (Carolina Academic Press, Durham, N.C, 1996). 119
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the particular military service entails taking up arms against the denationalizing state.172 The converse, however, is not so clear. Even if a treaty prohibits states from denationalizing dual nationals who have done nothing more than voluntarily perform foreign military service for their other states of nationality, perhaps the states parties retain the power to denationalize dual nationals on the more serious ground that they have assisted armed opposition against their states of nationality. Again, actual state practices vary. The United States, Canada, the United Kingdom, and El Salvador, for example, refrain from denationalizing even under these circumstances - regardless of whether the person is a dual national or a mononational.173 In contrast, the laws of Germany,174 Turkey,175 and the Dominican Republic176 permit denationalization of persons who engage in hostilities against them. Unlike the sharp division on the denationalization issue, there is virtual unanimity among states on the general criminality issue. Every state of whose law I am aware makes it a criminal offense - usually treason - for an individual who has a specified legal relationship with the state to participate in armed hostilities against that state. Furthermore, I have been able to find no state that carves out an exception for dual nationals. Indeed, in at least two states - the United States and the United Kingdom - judicial decisions have specifically affirmed the criminal convictions of dual nationals whose hostile acts were performed while in the service of their other states of nationality.177 172
173
174
175 176
177
120
The 1997 Convention expressly permits denationalization upon "voluntary military service in a foreign force" or upon "conduct seriously prejudicial to the vital interests of the State Party." See art. 7(l)(c,d). United States law permits expatriation of a person who voluntarily serves in the armed forces of a state that is engaged in hostilities against the United States, but only if the person intends to relinquish United States nationality. 8 U.S.C. § 1481(a)(3)(A). In Canada, this ground for loss of citizenship is not listed in the Citizenship Act, S.C, ch. C-29, §§ 7, 8 (1977). Similarly, in the United Kingdom, neither the Foreign Enlistment Act 1870, 33 Vict., ch. 90, nor the British Nationality Act 1981, ch. 61, authorizes loss of nationality on this ground. Nor do any of the denationalization grounds provided under the law of El Salvador refer to taking up arms against El Salvador, serving in a foreign military unit, or demonstrating a lack of allegiance to the state. Constitucion Politica de la Republica de el Salvador, arts. 91, 94, . Although German law does not refer specifically to serving in the armed forces of a hostile state, it permits denationalization of dual nationals who voluntarily enlist in the armed forces of their other states of nationality without permission from German officials. Staatsangehorigkeitsgesetz, § 28. Obviously Germany is unlikely to consent to such a person taking up arms against it. See supra notes 165-67. Constitucion de la Republica Dominicana, art. 14, . This provision prescribes loss of citizenship rather than nationality. The American decision is United States v. Kawakita, 343 U.S. 717 (1952). There, the individual performed civil, not military, service for the Japanese government during World War II. His Japanese nationality was held to be no defense to his treason prosecution in the United States. The British decision is Inouye Kanao v. The King, Case No. 39, 31 Hong Kong L. Rep. 66 (App. Div. 1947), discussed in Bar-Yaacov, supra note 4, at 57-58.
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In the United States, any person "owing allegiance to the United States"178 who levies war against the U.S. or gives aid to its enemies is guilty of treason, a crime punishable by death.179 Mexico similarly makes it a criminal offense for a Mexican national to serve in the armed forces of a state that is at war with Mexico.180 In Canada it is an offense for a Canadian national to serve voluntarily in the armed forces of a foreign state that is at war with any friendly foreign state (not just Canada) or even to leave Canada with the intent to do so.181 If the person assists armed forces against whom Canadian Forces are engaged in hostilities, the offense rises to the level of high treason.182 The United Kingdom has analogues to both of those Canadian laws. A British subject who engages in military service with a state at war against a friend of England is guilty of a crime,183 and to levy war against the King (i.e., against the United Kingdom) constitutes the more serious offense of treason.184 In Germany, a person who uses force to negatively affect the existence of the Federal Republic of Germany is guilty of treason.185 That provision appears to cover participation in foreign military operations against Germany, and there is no explicit exception for dual nationals. And the Turkish Criminal Code imposes "heavy imprisonment for life" upon a Turkish citizen who is convicted of serving in the armed forces of a state that is at war against Turkey, unless the person was legally obligated to serve.186 If the person was the commander of such forces, the punishment is death.187 Importantly in light of the present civil strife in Turkey, military service on behalf of a political group engaged in belligerent action against the Turkish government is treated in the same way as serving with the armed forces of a foreign state.188 The preceding summary reveals several variations in the precise elements of these criminal statutes. One major variable is the required relationship between the charged individual and the state. The Canadian and Mexican laws apply to "nationals" who engage in the prohibited conduct; the Turkish law refers to "citizens;" the U.K. law covers "British subjects;" the U.S. law, as noted earlier, encompasses all who owe "allegiance;" and the German law contains no explicit limitation on the class of individuals subject to criminal sanctions. The Canadian and Turkish laws specify that only voluntary service (i.e., not 178
179 180
181 182 183 184 185 186
187 188
This term includes even temporary allegiance; thus, resident aliens can be guilty of treason. Green v. United States, 8 Ct. Claims 412, 416 (1872). 18 U.S.C. §2381. Codigo Penal para el Distrito Federal en Materia de Fuero Comun y para toda la Republica en Materia de Fuero Federal [Mexican Penal Code], art. 123. Foreign Enlistment Act, R.S.C., ch. F-28, §§ 3, 4 (1985). Criminal Code, R.S.C., ch. C-34, § 46 (1985). Foreign Enlistment Act 1870, 33 Viet., ch. 90, § 30. Treason Act 1351, 24 Edw. 3, ch. 2. Strafgesetzbuch [Criminal Code], § 81(1). Turkish Criminal Code, Law No. 756, art. 126 (Mar. 1, 1926), in Turkish Official Gazette, No. 320 (Mar. 13, 1926). Ibid. Ibid. 121
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compulsory service) gives rise to criminality. The other statutes discussed above are silent on the issue. The Canadian law is two-tiered. It punishes individuals who serve in the armed forces of states that are engaged in hostilities against Canada more severely than it punishes individuals who serve in the armed forces of states that are engaged in hostilities against other states with which Canada is at peace. The Turkish law is similarly two-tiered. As noted earlier, the Turkish law is unusual in extending beyond enemy states to internal political groups engaged in belligerent action against the government. What should states' reactions be when their dual nationals voluntarily take up arms against them? It is difficult to find fault with states that denationalize under such circumstances. If citizenship entails any obligations at all in exchange for the rights it bestows, surely a minimum obligation is to refrain from taking up arms against the state. Admittedly, for the dual national of two states that are at war against one another, this facially modest request becomes an admonition not to take up arms for the person's other state of nationality - a state where the person might even reside. But even the admonition not to take up arms on behalf of the state where one has both citizenship and residence seems reasonable when one considers that the 1907 Hague Convention, discussed earlier, permits the dual national to sit out the fray entirely. If the person feels so much more attached to the residence state of nationality than to the non-residence state that he is willing to assist hostile action against the nonresidence state, then the differential in degree of allegiance seems great enough to require of the person a final decision either to expatriate or to refrain from attacking. And if the person chooses to fight and does not initiate expatriation, the state ought to be able to cut the cord itself. Unlike the denationalized mono-national, after all, the denationalized dual national does not become stateless. Criminal sanctions are another matter. Punishing one's own nationals for treason when they have aided in an armed conflict against the state of nationality is a longstanding tradition that there is neither likelihood nor convincing reason to terminate. An exception for dual nationals, however, would be beneficial. A dual national has greater reason than a mono-national to assist the other state (assuming it is his own state of nationality), and also suffers less from expatriation because he is not thereby rendered stateless. Moreover, since a dual national could have avoided criminal liability by expatriating, the domestic law of the state could choose to regard his participation in an enemy armed force as a voluntary decision to expatriate. Alternatively, as suggested above, the state could view the person's acts as a basis for denationalization. Either way, a severing of the dual national's ties to the state against whom he has fought should be an adequate resolution without the further imposition of criminal sanctions.
III. CONCLUSION In recent years, dual nationality has mushroomed, for numerous reasons that include higher levels of international migration and a trend toward relaxing domestic legal 122
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barriers to dual nationality. Modern analysts have counseled calm. They have argued with increasing assurance that the problems associated with dual nationality are small. It has even been suggested that loosening the constraints on dual nationality would release benefits that outweigh the harms. One specific area of traditional concern has been the effect of dual nationality on either voluntary or compulsory military service. Problems do exist, and they could be addressed either by trying to diminish the number of dual nationals (strategy number 1) or by solving the specific problems that dual nationality poses in the military service context (strategy number 2). Persuaded by arguments that dual nationality engenders only minor problems while yielding offsetting benefits, and highly skeptical that dual nationality could be substantially reduced at acceptable costs, I have opted in this paper to explore strategy number two - addressing the specific problems that result when dual nationality policies and military service policies collide. All of the problems considered here require the balancing of competing interests. The needs and desires of individuals sometimes conflict with those of their governments. The interests of the two states of which a person is a dual national might conflict with each other or with those of a third state. Different states set different eligibility requirements for voluntary enlistment in the armed forces. The issue is best left to domestic law. As to that, there is no convincing reason to disqualify dual nationals from voluntary enlistment, and in fact very few states do so. Conscription is a tougher issue. Here, international conflicts and tensions are possible. Because international wars are now relatively infrequent, and because technological advances have made warfare less dependent on humans generally and unskilled humans in particular, conscription as a vehicle for staffing military forces is sharply down. Hence, the problem of conflicting demands for military service on dual nationals has also diminished. Some problems remain, despite an array of multilateral and bilateral agreements on the subject. The recurring theme in these agreements is that dual nationals who have performed compulsory or even voluntary service in one state of nationality should not be required to perform it again in the other state. That resolution merely triggers the harder question, one not always addressed in the treaties: Which state has priority in drafting? Most common has been to allow the dual national to choose in which of the two states to serve, leaving the state of residence as the default option. This paper recommends more widespread use of bilateral treaties - as distinguished from both multilateral conventions and domestic law - to address these and some minor related issues. The treaties should clearly prohibit double drafting but permit derogation in cases of emergency. They should also settle the question whether, as between the two particular states, voluntary enlistment in one should preclude conscription by the other. There are substantial arguments on both sides of that debate. If free choice is permitted, conscription in both states should be deferred until the dual national attains the higher of the two 123
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draft ages, so that young dual nationals can freely visit family members in their nonresidence states of nationality without fear of conscription. Of increasing importance in Europe, as the number of dual nationals rises while more and more states abolish conscription, is whether dual nationals who reside in a state with no active draft should be liable to conscription in their non-residence states. Dual nationals who are medically or otherwise exempt from conscription in their residence states of nationality, but not exempt in their non-residence states, present an analogous problem. Again, there are substantial arguments on both sides. If a dual national resides permanently in a third state, and either one or both dual nationality states conscript, the person should be permitted to choose military service in either of the two nationality states. Whether one should have the additional option of serving in, and only in, the third state is a close question, but the argument for allowing that option is strongest when the law of the third state makes military service compulsory even for resident aliens. Military service policy can also cause a dual national to lose one of his or her nationalities, either voluntarily or involuntarily. This paper argues that, except possibly in wartime, an adult dual national should have the right to renounce one of his or her nationalities even for the purpose of avoiding compulsory military service and even if the person resides in that state. It is also submitted, however, that the state might attach appropriate sanctions to renunciation. Many of the treaties are ambiguous as to whether the states may denationalize dual nationals - i.e., terminate their nationalities against their will - when they have performed foreign military service. Those ambiguities should be resolved, preferably by prohibiting denationalization on that ground in peacetime unless one of the states is losing so many potential conscripts that the threat of denationalization is essential to maintaining an adequate military force. Finally and fortunately, wars between two states that share large numbers of dual nationals are now rare. When they do flare up, international law clearly prohibits either state from requiring anyone to take up arms against either of his states of nationality. If a dual national nonetheless does so voluntarily, the laws of some states permit denationalization and, typically, criminal punishment for treason or other offenses. This paper suggests that denationalization of a dual national on such grounds is appropriate but that criminal prosecution is not.
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ANNEX SAMPLE LIST OF BILATERAL TREATIES ON MILITARY SERVICE AND DUAL NATIONALITY [Special thanks are due to Julie Strube for locating these treaties.] Parties, Title of Agreement
No.
UNTS Citation
Denmark and France, Convention relating to military service. Signed at Paris, 22 June 1949.
737
48 UNTS 3
United Kingdom and Chile, Agreement concerning military services. Signed at Santiago, 27 October 1947.
1094
82 UNTS 209
United Kingdom and Denmark, Agreement (with agreed minute) regarding military service. Signed at London, 20 January 1955.
2842
183 UNTS 245
Belgium and Netherlands, Exchange of letters constituting an arrangement concerning military service. Signed at Brussels, 9 June 1954.
2936
216 UNTS 121
Norway, Denmark and Sweden, Agreement concerning the relationship between compulsory military service and nationality in Norway, Denmark and Sweden. Signed at Oslo, 3 March 1956.
3452
243 UNTS 169
Denmark and Italy, Convention concerning military service. Signed at Rome, 15 July 1954.
3516
250 UNTS 43
United Kingdom and France, Military Service Agreement. Signed at London, 21 December 1949.
3786
264 UNTS 37
Denmark and Chile, Agreement concerning military service. Signed at Santiago, 22 October 1953.
5004
348 UNTS 261
Italy and Chile, Convention concerning military service. Signed at Rome, 4 June 1956.
5195
362 UNTS 309
United Kingdom and Brazil, Military Service Agreement (with exchange notes). Signed at Rio de Janeiro, 5 April 1955.
5793
403 UNTS 139
Sweden and Argentina, Agreement concerning military service. Signed at Buenos Aires, 16 January 1959.
6163
427 UNTS 327
Israel and France, Convention concerning the military service of persons with dual nationality. Signed at Paris, 30 June 1959.
6428
448 UNTS 107
125
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Netherlands and Italy, Convention concerning military service of persons with dual nationality. Signed at Rome, 24 January 1961.
6468
450 UNTS 207
Denmark and Argentina, Agreement concerning military service. Signed at Buenos Aires, 28 November 1962.
6554
455 UNTS 429
Finland and Argentina, Agreement concerning military service. Signed at Buenos Aires, 8 May 1963.
7000
482 UNTS 309
Argentina and United Kingdom, Military Service Agreement (with appendix). Signed at Buenos Aires, 12 September 1963.
8698
601 UNTS 213
Argentina and Belgium, Convention concerning military service. Signed at Buenos Aires, 11 June 1963.
9077
635 UNTS 135
France and Spain, Convention concerning the national service of persons with dual nationality (with annexes and exchange of letters). Signed at Madrid, 9 April 1969.
10709
746 UNTS 155
France and Italy, Convention concerning the military service of dual nationals (with annexed models). Signed at Paris, 10 September 1974.
15487
1036 UNTS 239
Spain and Italy, Convention concerning the military service of persons with dual nationality (with annexes). Signed at Madrid, 10 June 1974.
16191
1063 UNTS 3
France and Tunisia, Convention concerning the national service obligations of dual nationals (with exchange of letters of 17 June 1982). Signed at Paris, 18 March 1982.
22415
1336 UNTS 285
Spain and Argentina, Agreement concerning military service. Signed at Buenos Aires, 18 October 1948.
23004
1363 UNTS 89
126
CHAPTER 5 COMMENT
DUAL NATIONALITY AND MILITARY SERVICE
Olaf Reermann
I. INTRODUCTION I congratulate Stephen Legomsky on his report. He has impressively described the problems associated with multiple nationality and military obligations. The report is exhaustive, comprehensive, and comprises a great number of examples. I fully agree with Professor Legomsky on many issues. It is particularly true that the problem of multiple nationality and military obligations is more and more on the decrease. This is firstly due to the fact that more and more states have abolished or no longer practice military obligations. In cases where a multiple national keeps up his permanent residence in the state which does not have military obligations, problems do not arise, as long as he does not enter the state whose nationality he also possesses and which continues to require compulsory military service. A solution to this problem has been found in the Council of Europe's European Convention on Nationality, dated November 6, 1997. It provides that such persons shall not be drafted "who have been exempted from their military obligations or have fulfilled civil service as an alternative. Persons who are nationals of a State party which does not require obligatory military service shall be considered as having satisfied their military obligations when they have their habitual residence in the territory of that State party." Furthermore, multilateral conventions and a great number of bilateral agreements remove problems and protect multiple nationals from being drafted twice to perform their military service. Nevertheless, there still are problems, which have been exhaustively listed by Professor Legomsky. As regards regulations in the nationality law and the national laws governing military service, terrible scenarios had sometimes been conjured up as a result of a dual national's nonfulfillment of military obligations in one of the states of nationality, or as a result of the fulfillment of military obligations in the other state. These include: David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 127-134 © 2003 Kluwer Law International. Printed in Great Britain.
O. Reermann
- The nationals who do not fulfill their military obligations will be sentenced to imprisonment, their assets will be confiscated, and they will be expatriated. - Those who fulfill their military obligations in one state will lose the nationality of the other state, their assets will be confiscated, and they will be punished. - Multiple nationals experience insoluble problems when the states concerned engage in armed conflicts: for example, they are accused of treason, desertion, and even espionage. I am not in a position to tell whether such negative legal consequences are still a realistic risk under today's provisions governing nationality law or the military obligations of states. When skimming through the relevant European regulations, it becomes obvious that a major change has taken place. The scenarios above are more properly associated with the way of thinking that prevailed in the 19th century. At that time, nationals were totally claimed by the state, which was seen as an absolute entity; as a consequence, the state claimed absolute loyalty on the part of the citizens. This is reflected by sayings such as: "Loyalty is not divisible," or "No man can serve two masters." Thus, the authoritarian state, which exclusively sees its citizens as subjects, was put on a metaphysical pedestal - an attitude which has been overcome in the meantime. When you look at the history of the nationality law in Germany, though, you see that such thoughts were not alien to the Imperial Nationality Act of July 22, 1913. One of the reasons explicitly mentioned in this Act for losing German nationality was the nonfulfillment of military obligations. The legislative history of the Imperial Nationality Act summarized the ethical, military, and political reasons justifing the loss of nationality for those who do not fulfill their military obligations in this way: Civic rights may not be claimed by those who do not fulfill the corresponding civic obligations; those who do not fulfill these obligations therefore tacitly express the intention to disassociate themselves from the civic community. This reason for losing nationality has completely lost its meaning owing to today's basic concept of nationality. A corresponding provision in the German constitution prohibits the withdrawal of German nationality. As we see things today, nationality reflects the basic relation in the form of a membership link and legal affiliation with the state community, with constitutional rights immediately derived from it. The partnership between the individual and the state, which arises from the affiliation, no longer leaves any room for an absolutist and authoritarian state and its exclusive claim to power over its subjects. As nationals, citizens take part in the political community's forming of its will, and may therefore claim rights and legal positions, but also have certain obligations resulting from this affiliation. These include military obligations. As a rule, military obligations are related to the possession of nationality, so that, generally, multiple nationals have to fulfill military obligations in the states whose nationality they possess. This rule is in conformity with international law. Thus, 128
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multiple nationals may in principle be conscripted several times: in the state of their permanent residence, but also in other states whose nationality they possess.
II. LEGAL SITUATION IN THE FEDERAL REPUBLIC OF GERMANY According to the Compulsory Military Service Act for Germany, persons who possess the nationality of one or several other states besides German nationality are subject to military obligations in Germany if they have their permanent residence in the Federal Republic of Germany. Under German military service law, the military service performed in foreign armed forces or any other service performed in lieu of military service may be counted towards the basic military service to be performed in Germany. However, some other states do not unconditionally recognize the military service elsewhere or the compulsory service in lieu of military service as the fulfillment of their military obligations. German-Iraqi and German-Iranian multiple nationals, in particular, who habitually reside in the Federal Republic of Germany and had been conscripted to basic military service in Germany, have had to perform military service also in Iraq and in Iran, respectively, so as to head off difficulties. Otherwise, they would not have been able to enter upon an inheritance there, or they might have been arrested upon entering Iran. It cannot safely be said which states do not recognize the performance of the basic military service in Germany as the performance of their own national military obligations.
III. MULTILATERAL AGREEMENTS The Member States of the Council of Europe addressed the problems of multiple military obligations at an early stage; they created a clear regulation when they adopted the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality on May 6, 1963 and the abovementioned European Convention on Nationality of November 6, 1997. The provisions dealing with the consequences of multiple nationality as regards military service under the 1997 Convention contain the following basic rules: 1. Those possessing the nationality of two or more contracting parties need only fulfill military obligations vis-a-vis one of the contracting states. 2. The person concerned is liable to military service vis-a-vis the contracting party on the territory of which he habitually resides, although he may instead volunteer, up to age 19, to perform military service in the other ocuntry of nationality. 3. When a person has fulfilled his military obligation vis-a-vis one contracting party, he is deemed to have satisfied his military obligations also vis-a-vis the other contracting party or parties whose nationality he also possesses. 4. The rule under 3 above shall apply to persons who have been exempted from their military obligations or have performed civil service as an alternative. 129
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5. Persons who are nationals of a state that does not require obligatory military service shall be considered as having satisfied their military obligations when they have their habitual residence in the territory of that state. Under the 1963 Convention, the provisions were more restrictive. They did not include rules 4 and 5 above, so that military obligations in one state would not be excused if the state of residence allowed civil service or enforced no military obligations. However, under the German Compulsory Military Service Act, no difficulties arise in situations where the multiple national has voluntarily performed military service in the other state after reaching age 19. If this state actually has compulsory military service, the person concerned will generally be exempted from being drafted to military service in the Federal Armed Forces. This is expressly laid down in section 8, para. 2, of the Compulsory Military Service Act: "Military service or other service performed in lieu of military service is to be counted towards the obligation to perform military service in Germany, if the military service abroad was performed due to a legal provision." The situation is different if the person concerned joined the armed forces of another state voluntarily without having been obliged to perform military service there. The new nationality law of the Federal Republic of Germany, which took effect on January 1, 2000, provides that in these cases the persons concerned loses German nationality. The relevant provision, section 28, states the following: Any German who, voluntarily, and without obtaining consent pursuant to section 8 of the Compulsory Military Service Act, joins the armed forces or a comparable armed unit of a foreign state whose nationality he also possesses, shall lose German nationality. This shall not apply if he is entitled to do so on the basis of an intergovernmental treaty. The reasons given for providing that such loss should take place state that the conduct of the multiple national shows that he is committed to the other state of nationality and that he has at the same time turned away from the Federal Republic of Germany, an attitude justifying the loss of nationality. Professor Legomsky has pointed out that these problems can be avoided if multiple nationals are in any case given this option, irrespective of their age and of whether or not the other state actually provides military obligations. This result has recently been stated as desirable by the relevant scholars; it is based on another definition of nationality, though. Those who see nationality merely as the right of an individual, from which he can dissociate at any time, no matter how he or she behaves towards the other state, are bound to support this hypothesis. For Germany, but also for other states, the proposed outcome results from another way of seeing the state in terms of nationality, namely as a bundle of rights and obligations, as I have already described before. Any multiple national who decides, voluntarily, to join the armed forces of another 130
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state whose nationality he also possesses, without being drafted, is on notice that this act may lead to the loss of the nationality of the state of residence. If he decides, nevertheless, to perform service in the other state, it is clear that this will lead to the loss of German nationality. Furthermore, the multiple national can head off this outcome by obtaining the prior approval of the Minister of Defense. Another view which is held by Professor Legomsky and which is not shared by Germany concerns the issue of whether the multiple national is entitled to renounce his nationality. Legomsky holds that this should also apply if he is due to perform his military service, has already been put on the military roll, or even if he has already been called up for military service. Germany holds the view that, for persons liable to military service, giving up their nationality requires the consent of the Federal Minister of Defense. This goes back to the basic conviction that such persons - as Legomsky puts it - should not be allowed to "eat their dinner and then flee the restaurant when the bill arrives," an expression which aptly illustrates the attitude of states proceeding in the same manner as Germany. The 1963 Convention has been ratified by Belgium, Denmark, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Norway, Austria, Sweden, and Spain, as well as by the United Kingdom and Northern Ireland. Thus, multiple nationals who possess the nationality of one of these states besides the German one, do not run the risk of having to fulfill military obligations vis-a-vis more than one state. They need not fulfill the basic military service in Germany if they voluntarily fulfill military service of at least equal duration, before reaching the age of 19, in the armed forces of the other state whose nationality they also possess. This convention has proved its worth. However, problems associated with the implementation of the convention have arisen from the term "habitual residence." This term is also used in the German law, but must be interpreted differently there, meaning "permanent residence." The habitual residence of a student, for example, is the place where he or she studies, while his or her permanent residence is typically the residence of the parents. Because the Convention has been interpreted to mean habitual residence, in this more transitory sense, it has led to major practical problems. Under this interpretation of the Convention, multiple nationals liable to military service can avoid conscription by simply moving abroad, and they may even escape an existing military service relationship. Furthermore, problems also arise from dual nationals' exercise of their right under German law to choose where to perform military service. They tend to opt for military service in the state where the duration of military service is shorter than in Germany, hoping that they will not be conscripted for the remaining military service in Germany. From the German government's perspective, it must be taken into account that it is difficult, for organizational and military reasons, to draft persons liable to military service for the remaining period if this is only a few months. Let me add that practical problems also arise from the fact that under the current wording of the 1963 Convention, the performance of alternative civil service in another state cannot be considered as the performance of military obligations in the 131
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Federal Republic of Germany. A convincing solution to this problem has been found in the above-mentioned 1997 European Convention on Nationality.
IV. BILATERAL AGREEMENTS Germany has concluded few bilateral agreements designed to avoid the multiple drafting of multiple nationals, i.e., one with Argentina and one with the Dominican Republic.
V. SPECIAL PROBLEMS A. Greece German-Greek dual nationals who permanently reside in the Federal Republic of Germany must perform military service in the Federal Armed Forces. After performing the military service in the Federal Armed Forces, they are exempted from the obligation to perform military service in Greece owing to military law. However, under the Greek law governing military obligations, the fact that someone's life is focused abroad does not release the person concerned from military obligations in Greece, if such a situation was established after the person reached age 15 or if the person liable to military service resided in Greece for more than six months. Therefore, before travelling to Greece, German-Greek persons who would potentially be liable to military service need to apply with the competent Greek diplomatic mission abroad for a certificate stating that their permanent residence is in the Federal Republic of Germany. The certificate must state how long the person concerned will probably stay in Greece. This certificate, which is issued by the Greek diplomatic authorities, makes it easier to document a limited period of residence in Greece, which would otherwise be difficult. German-Greek persons liable to military service who have already fulfilled their military obligations in Germany should also present their military service certificate - with a certified translation into Greek - to the competent diplomatic mission abroad immediately after completing their military service in the Federal Armed Forces, but at least in due time before they travel to Greece. The diplomatic mission abroad informs the Greek border control authorities, so that the persons concerned may enter and leave Greece without any problems. Greece does not recognize the performance of civil service as the performance of military obligations. German-Greek dual nationals who have fulfilled their military obligations by performing civil service in Germany, however, may obtain a certificate issued by the Federal Office for Civil Service stating that they have fulfilled their military obligations. When entering and leaving Greece, these persons generally do not face any problems, simply because the Greek authorities do not verify how the miltiary obligations in Germany have been satisfied.
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B. Switzerland Between Germany and Switzerland there is no agreement regulating the military obligations of multiple nationals, but the German and the Swiss military law contain regulations which avoid the multiple drafting of persons liable to military service in most cases. An exception arises, however, in the case of German-Swiss dual nationals who live in the Federal Republic of Germany close to the border with Switzerland, but who work in Switzerland as so-called frontier workers. They are required to fulfill their military obligations in the Federal Armed Forces in line with the German Compulsory Military Service Act, but they also need to fulfill their military obligations vis-a-vis Switzerland in line with a 1961 resolution, as if they were living in Switzerland. Germany and Switzerland are currently negotiating a bilateral agreement to deal with this problem, so that persons liable to military service are not drafted by both countries. C. Turkey There is no bilateral agreement between Germany and Turkey regulating the military obligations of German-Turkish dual nationals. Therefore, a German-Turkish dual national who permanently resides in the Federal Republic of Germany must fulfill his military service in the Federal Armed Forces. Since 1993, Turkish law provides that its military obligations are deemed to be fulfilled by a dual national who has performed military service abroad, if he was born abroad or left Turkey before coming of age, i.e., before he reached age 18. The civil service performed by a German-Turkish dual national in Germany is also taken into account. Thus, it is safe to assume that German-Turkish dual nationals are not drafted by both countries.
VI. PROVISIONS CONTAINED IN THE GERMAN COMPULSORY MILITARY SERVICE ACT Under the German Compulsory Military Service Act, the military obligations of persons who permanently reside outside Germany and have their livelihood abroad are suspended if there are facts indicating that they intend to maintain their permanent residence abroad. This applies above all to Germans who also possess the nationality of another state. Thus, it is irrelevant whether or not the person concerned has performed military service in the other country of nationality. As stated above, military service performed in foreign armed forces can be counted towards German military service required under this Act, either wholly or partially. The military service is supposed to be counted towards the compulsory military service if it was performed due to legal compulsion. Thus, it is largely ruled out that a multiple national would be drafted for military service in the Federal Republic of Germany if he has already performed obligatory military service in the state of the other nationality.
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VII. SUMMARY To sum up: under the current legal system, multiple nationals who also possess German nationality need hardly fear being drafted twice as regards their military obligations in Germany. In any event, a German multiple national who permanently resides in the Federal territory is protected against being drafted by the state of the other nationality, because the basic rights derived from Articles 11 and 16, para. 2, of the Basic Law ensure that he may stay in the Federal territory and cannot be extradited to the other state.
VIII. OUTLOOK Questions relating to military service by multiple nationals can largely be settled through multilateral or bilateral agreements, or in many instances by domestic law that credits the individual with the civil or military service performed in the other state of nationality. Nonetheless, it might be advisable to prepare a model bilateral agreement for general use. Furthermore, it might be a good idea to work out recommendations as to basic military service in cases where the multiple national is abroad and has performed military service there, be it due to the existing foreign nationality or for other reasons. The aim, at any rate, should be to preclude that multiple nationals are drafted to perform their military obligations by more than one state.
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CHAPTER 6
POLITICAL RIGHTS AND DUAL NATIONALITY
Peter J. Spiro*
Political rights present a central component of the institution of modern citizenship. As other rights come increasingly to hinge on personhood, the right to vote and to hold public office continues, as a general matter, to be restricted on the basis of nationality. The extent that political rights have emerged in many nations as the only significant and accepted differential between citizenship and alienage suggests the political essence of citizenship. States continue to guard the formal boundaries of political community through the citizenship criterion. But they are no longer guarding it as jealously as in the past. The exercise of political rights was once bound up with issues of political loyalty and allegiance, which in a world of competitive nation-states was considered an indivisible quantity. As with military service, to vote in a particular state was thought to evidence allegiance to it, incompatible with allegiance to or the enjoyment of political privileges in another polity. The exercise of political rights in another state, in other words, presented the prospect of disloyalty. The possibility of incompatible political identities helps explain the long-entrenched disfavor for dual nationality under domestic and international law. Recent trends toward acceptance of the status reflect the erosion of the allegiance paradigm. Citizenship may still mark the boundaries of political community, but overlap among political communities is increasingly tolerated and even encouraged. Among countries that have accepted dual nationality, none appears to have restricted the franchise on that basis alone. That is not to say that all dual nationals are able to cast ballots in both states of nationality. Many dual nationals are disqualified from voting as non-residents of states in which they hold citizenship. But it is the fact of non-residence, not the status of dual nationality, that gives rise I would like to thank Connie Lenz of the Hofstra Law Library for invaluable reference assistance in locating foreign law sources, which are current as of late 2000.
David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 135-152 © 2003 Kluwer Law International. Printed in Great Britain.
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to the disqualification. Non-resident citizens who do not possess another nationality are subject to the same disqualification. Insofar as the franchise is restricted among citizens, it is through application of a residence paradigm, not one dependent on citizenship ties or questions of allegiance. Moreover, many states do not restrict suffrage on the basis of residence, and indeed there appears a trend toward the more liberal extension of franchise and other rights of political participation to nonresident citizens. By contrast to the franchise, some countries do disqualify dual nationals from public service solely on the basis of their status as dual nationals. Such legal restrictions, however, do not by any means represent a dominant practice. Although few instances of dual national officeholders have been reported, their numbers will likely increase with the overall incidence of dual nationality. In the great majority of cases, such officeholding should pose few difficulties for either country of nationality. This paper describes and critiques these basic approaches to the political status of dual nationals. It argues, consistent with general trends, that exceptions to the full political participation of dual nationals can be justified in only a narrow range of cases. As dual nationality itself emerges as an accepted feature of globalization, the acceptance of multiple political identities should follow as of course.
I. VOTING RIGHTS OF DUAL NATIONALS Very few countries appear to restrict the franchise of citizens on the grounds that they hold alternative nationality. Rather, to the extent that dual nationals are disadvantaged under national election laws, it is by operation of residency requirements, which will affect large numbers of dual nationals. Many countries restrict the franchise of non-residents, although the trend is towards allowing greater electoral participation for non-residents, including dual nationals. None of the many countries that permit or tolerate dual nationality appears to restrict voting by resident citizens by virtue of their status as dual nationals. In other words, dual nationality is not an electoral disqualification for resident citizens. This universal practice demonstrates that the fact of dual nationality by itself - of a formal political tie to another country - is not now thought inherently to compromise responsible political participation.1 Dual national status may in some cases disqualify non-resident citizens from the franchise. Belgium presents an example. Under Belgian law, non-resident citizens in many cases may vote in federal elections by proxy or in person. However, to establish There are some countries in which dual nationality may not be recognized because, among other reasons, such recognition would help empower certain resident populations. The refusal by the Baltic states to accept dual nationality presents the best example. Accepting dual nationality in those states poses the perceived threat of advancing Russian interests that may be (and have obviously historically been) opposed to the national interests of those states. It is not clear that this basis for rejecting altogether the status of dual nationality should stand. See infra note 17.
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eligibility to vote as a non-resident, Belgians must provide official documentation from the country of which they are resident that they are not eligible to vote in that country. Thus, for example, a Belgian-American dual national resident in the United States would not be eligible to vote in Belgian elections; her eligibility to vote in U.S. elections (as a U.S. citizen) would disqualify her from the non-resident Belgian franchise.2 Franchise disqualifications of the Belgian sort are unusual, however. (Indeed, it is the only such example I have identified.) By far the more prevalent restriction on the political participation of dual nationals takes the form of restrictions applied to non-resident citizens, regardless of whether they possess alternate nationality. Because dual nationals are as likely as not to be non-resident, residency requirements result in diminished rights of political participation for many dual nationals, and should thus be considered an important component in how those rights are defined. It is important up front to emphasize that these restrictions do not single out dual nationals for disadvantageous treatment, although it may be in certain cases that a high incidence of dual nationality among non-residents provides a partial rationale for voting restrictions on all non-residents. Residency-based restrictions take three basic forms. First, some countries (including Ireland, Hungary, Denmark, South Africa, Italy, El Salvador, Slovakia, and Nepal) impose a blanket ineligibility to vote on non-resident citizens (ordinarily with exceptions for those abroad in government service and, in some cases, on overseas assignment with a home-based corporation). Second, a handful of countries, the United Kingdom, Canada, and New Zealand among them, disqualify citizens after a certain period of non-residence (twenty years in the case of the UK, five in the case of Canada, and three for New Zealand, although in the latter two cases the period runs from last presence of any duration). In the third category are those countries that allow non-residents to vote, but only if they return home to cast ballots; in other words, no provision is made for external voting. Israel, Italy, Taiwan, Turkey, Mexico, and the Dominican Republic are prominent examples of this last category. Finally, there are an increasing number of countries that extend the franchise to all non-resident citizens, including dual nationals, and allow ballots to be cast either through mail or at embassies and consulates (in other words, voting can be undertaken in the country of residence). Countries that allow absentee balloting by mail (and that recognize dual nationality) include the United States, Spain, and Portugal, as well as for qualified non-resident citizens of Canada. Qualified British nonresidents may appoint a proxy to cast their votes at a polling place in the United Kingdom. Countries that provide for polling places at embassies and consulates abroad include Poland, Lithuania, Columbia, Venezuela, Peru, France, Russia, Armenia, Syria, Sweden, and Spain. Even under the Belgian scheme, non-resident dual citizens may vote in Belgium when they are resident in a third country in which they do not hold citizenship. 137
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Most countries that permit non-resident voting (including those that require nonresidents to return home to cast ballots) do not provide separate representation in national legislatures for non-resident communities. Instead, non-resident voters are assimilated, for electoral purposes, to their last place of residence in country. Some countries provide discrete representation for non-resident communities, however. Portugal, France, and Columbia reserve seats in upper legislative chambers for citizens abroad (directly elected in the case of Columbia and Portugal, indirectly in the case of France through an elected "Senior Council of the French Abroad"). In recent parliamentary elections in Croatia, non-resident voters (including dual citizens) were awarded six seats. Separate representation has also been proposed in Ireland (as part of a general proposal extending franchise rights to some non-resident citizens), Mexico, and the Dominican Republic. A Mexican mono-national resident of Los Angeles was elected to the Mexican congress in 2000; he now commutes to the Mexican capital, claiming to represent the interests of both his "home" district in Mexico City and Mexican residents in the United States.3 Anecdotal evidence suggests that "turn-out" levels among eligible non-resident voting populations is low. Only 3,000 of 200,000 Columbian citizens resident in the United States cast ballots in 1990 elections for the Columbian presidency.4 Only 14,000 non-resident British citizens voted in 1997 parliamentary elections, a small fraction of those eligible.5 There are examples of higher participation rates by nonresidents; in 1994 Swedish parliamentary elections, for example, approximately 25,000 out of 80,000 eligible non-residents cast ballots, and France and Austria report turnout rates around 25 percent of total eligible voters. Nonetheless, a recent Council of Europe report on Member State links with citizens living abroad concludes that "in countries which allow their expatriates to vote, the actual participation rate is so low as to have little effect on the outcome."6
II. JUSTIFICATIONS FOR RESIDENCY RESTRICTIONS ON SUFFRAGE Restrictions based on residency appear in the first instance to share the same basic policy motivation: to eliminate or limit the "loose canon" risk, loosely speaking, of
L.A. Man Shows Clout of Mexican Expatriates, Los Angeles Times, July 10, 2000, at Bl. See Michael Jones-Correa, Between Two Nations: The Political Predicament of Latinos in New York City 125 (1998). See Voteless in Marbella, The Economist, Jan. 29, 2000, at 66 (reporting voting figures among British citizens overseas, including 800,000 retirees). A recent campaign by the Thai government to register overseas voters mustered a tepid response, with fewer than 25,000 out of 750,000 eligible non-residents filing to vote in national elections. See Better Deal for Overseas Voters, The Nation (Thailand), Feb. 23, 2000. In 1999 parliamentary elections, only 558 of 3080 Venezuelans registered at the country's consulate in Miami cast ballot there. See Local Venezuelans Cast Ballot, Miami Herald, July 26, 1999. See Council of Europe Parliamentary Assembly, Link Between Europeans Living Abroad and Their Countries of Origin, Doc. 8339 (Mar. 5, 1999), para. 48. 138
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substantial non-resident voters.7 This perceived risk can be unpacked into three types of risk possibly associated with non-resident voting: irresponsible voting, uninformed voting, and undisciplined voting. Residency restrictions may also be tied to the perceived challenges of large-scale out-of-country electoral logistics. In most contexts, however, none of these perceived risks ultimately justifies the perpetuation of residency restrictions on the franchise. Nor do I believe that other objections to the non-resident dual national franchise, as undermining political participation in countries of residence or the equality norm of modern citizenship, justify the imposition of such restrictions. Arguments asserting the risk of irresponsible voting on the part of non-residents work from the premise that non-residents lack an interest in election contests, and therefore will not exercise the franchise in a conscientious manner. Because nonresidents do not live with the consequences of their vote, the argument runs, they will not exercise it with the care that one could expect of resident voters, who have a self-interest in responsible voting.8 The argument assumes that individual interests in governmental policymaking hinge on residence. The premise seems increasingly tenuous in the face of globalization. Non-resident citizens often have significant interests in policymaking in their (other) country of citizenship. Many non-residents own property back home. Many operate businesses and have made other investments (including financial support for schools, roadbuilding, and other public works) either located in or involving transactions with that country. Many are liable for taxes, notwithstanding non-residence. Many have interests that arise from their non-residence, but with respect to which home-country governments are influential, for instance, in the processing and use of remittances.9 Non-resident citizens have clear interests with respect to nationality and military service laws, and many (especially those who retire abroad) have an interest in social welfare policy, as beneficiaries. In some cases, home country governments may also (at least indirectly) affect matters of intra-community relations, regardless of residence, especially where the home state is closely identified with a home religion. Many nonresidents return to their home country, and thus have an important interest in the future course of home country government.10 See Michael Jones-Correa, Under Two Flags: Dual Nationality in Latin America and Its Consequences for the United States, this volume. As David Martin argues, a rule allowing dual nationals the right to vote only in their country of residence would "help[] promote mature deliberation and seriousness about the vote, because the voter will have to live with the consequences in the most direct way." See David A. Martin, New Rules on Dual Nationality for a Democratizing Globe: Between Rejection and Embrace, 14 Georgetown Immigration L.J. 1, 26 (1999). As one advocate of non-resident voting for Salvadoran residents in the United States observed, "If they are the ones carrying El Salvador's economy on their backs, then they have political rights at home and should have a say in their nation's destiny, whether they live there or not." Double-Edged Sword: Latin American Governments Weigh Emigrants' Right to Vote in Their Native Countries, Dallas Morning News, Sept. 21, 1997, at 1A. By way of justifying 1975 legislation protecting the right of non-resident citizens to vote in federal elections, the U.S. Congress stressed that they have "distinct Congressional interests. The citizen 139
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The temporary return of many non-residents from the United States to vote in recent elections in Israel and the Dominican Republic would seem by itself to evidence a non-resident interest in those contests.11 To the extent that non-residents do not have interests in homeland governance, they are unlikely to exercise the franchise at all, even where the costs of participation are low. Anemic non-resident participation rates in British and Colombian elections would seem to belie assertions that large numbers of uninterested non-resident voters will participate if given the opportunity. Much the same goes for charges that non-resident voting will be uninformed. Those who are truly uninformed are unlikely to participate. Those who want to stay or become informed regarding political developments in their home countries now enjoy the means to do so through the internet, satellite and cable television, and an increasingly diversified print media.12 Print and broadcast media worldwide now maintain parallel web channels, as do political parties, governments, and diaspora associations. One's physical location now need have little bearing on access to political information.13 The concern of undisciplined non-resident voters - in the sense that ruling parties perceive non-resident communities to be unfriendly to their electoral interests, and that they may lack the tools of persuasion with non-resident communities that they enjoy with resident voters - presents perhaps the most significant obstacle to extending and facilitating non-resident exercise of the franchise. Ruling parties by definition have an interest in the status quo, and the political uncertainties posed by non-resident communities become an obstacle to regularizing their electoral participation.14 In its more pronounced version, the non-resident community becomes a outside the country is interested, for example, in the exchange rate of the dollar, social security benefits, or the energy situation. Furthermore, the local citizen and the overseas citizen share a number of common national interests, such as Federal taxation, defense expenditures (for example, U.S. troops stationed overseas), inflation, and the integrity and competence of our National Government." Overseas Citizens Voting Rights Act of 1975, House Report No. 94-649 (1975), at 2. See Sense of Duty to Homeland Compels Mass. Dominicans to Return to Vote, Boston Globe, May 13, 2000, at B3; New York Dominicans Strongly Back Candidates on Island, N.Y. Times, June 29, 1996, § 1, at 21; Thousands of Citizens Return to Vote, Jerusalem Post, May 17, 1999, at 4. In 1997 Turkish elections, 87,000 out of 2.3 million eligible non-resident voters cast ballots at border polling stations. Even in pre-internet context of 1975, the U.S. Congress observed that non-residents "keep in close touch with the affairs at home, through correspondence, television and radio, and American newspapers and magazines." See House Report, supra note 10, at 2. Indeed, it has been suggested that non-residents may be better informed to the extent their sources will be less vulnerable to official manipulation. See To Russia - Politics With Love, Immigrants Vote in Duma Election, Boston Globe, Dec. 20, 1999, at Bl (reporting non-resident Russians' opinion that "they are better equipped than most Russians to judge the political scene since they receive unbiased information in the United States"). This motivation seems the most probable explanation for prohibitions on non-resident voting. Home country states should have an interest in non-resident voting as a relatively cheap mechanism for maintaining connections - especially economic - with emigrant communities. One would thus expect the prevalence of non-resident voting, but for the political uncertainty that non-resident voters present 140
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"swing" bloc dictating a change in home country government (one that, to pull on the alternative objections to non-resident voting, is also allegedly irresponsible and uninformed).15 This concern also seems unsupportable. Again, voter participation rates among non-residents in those countries which allow the practice have been so low as to minimize the danger that non-resident voters will command a decisive position in any given election. Moreover, to the extent that non-resident voters do influence election results - overseas absentees ballots apparently tipped the balance, most notably, in the 2000 U.S. presidential election16 - that provides no principled justification for their exclusion. Assuming that non-resident citizens have an interest in homeland governance, and that they are unlikely to exercise the franchise in a less responsible or less informed manner than resident voters, then they should enjoy facilitated rights of participation in national elections, and, where warranted by numbers and interests, some assurance of a voice in national policymaking.17 The administration of non-resident suffrage should not pose insuperable obstacles, except perhaps in the most extreme cases of high non-resident voter concentration. The many countries that facilitate non-resident voting do so through mail ballots to entrenched regimes. Although I have not undertaken a survey, it would not be surprising to find the incidence of non-resident voting mechanisms lower among those countries whose governments have been dominated by a single political party. A former attorney general of Mexico, for example, argues that in a close election where "the deciding votes might well be cast by dual citizens," candidates would need "to take care that their campaign issues and proposals not be alien to the interests of U.S. citizens nor opposed to those held by the U.S. government." See Diego Valades, Constitutional Implications of Mexican Voting Abroad, manuscript 1999. In the context of non-democratic and transitional states, non-residents may be perceived as potentially subversive. See, e.g., Eva Ostergaard-Nielsen, Trans-State Loyalties and Politics of Turks and Kurds in Europe, SAIS Review, Winter-Spring 2000, at 23. Overseas absentee voters most likely gave George W. Bush his slim victory in the decisive Florida contest. If the count had been closed on election day, to the exclusion of overseas votes arriving thereafter, he would have lost the state by 202 votes and with it the election. See How Bush Took Florida: Mining the Overseas Absentee Vote, N.Y. Times, July 15, 2001, at Al. It is impossible, however, to know whether overseas voters in the aggregate made the difference, as absentee ballots received before election day were counted in initial election returns. In the days awaiting the deadline for receipt of overseas absentee ballots (ten days after the election itself), there was speculation that Democrat candidate Al Gore would pick up a large bloc of votes from former Floridians now resident in Israel. It is perhaps significant that even in the face of that possibility no political actors or commentators appeared to question the legitimacy of non-resident voting. The 2000 presidential candidates spent a small but unprecedented amount of campaign funds on advertising directed at overseas voters. See Council of Europe, supra note 6, para. 40 ("the issue ... is essentially a matter of fundamental, inalienable human rights. It is important that those wishing to exercise them may freely do so."). A variant of this argument brings into question the refusal of some countries to recognize dual nationality, in part because it would extend political power to resident communities. See supra note 1. Permanent residents have obvious interests in the governance of the country in which they live, and should have a voice with respect to that governance. The challenge can, however, alternatively be addressed by enhancing the rights of non-citizens to allow political participation rather than through recognition of dual nationality and extending political rights to those holding dual national status. 141
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or polling at embassies and consulates, or a combination of the two.18 Where nonresident communities are dispersed or small, host countries (that is, countries in which the voters reside) have not objected to foreign voting on their territory. Largescale voting on foreign territory, however, could pose problems for home and host countries. (The prospect of voting by Mexican citizens in the United States, or by Turkish citizens in Germany, both numbering in the millions, present the most plausible examples.) Home countries may be concerned about heightened possibilities for fraud in absentee balloting, or the high expense and logistical difficulties of largescale in-person voting at diplomatic facilities.19 Host countries might want to avoid having to police intense campaign activities and election-day conduct, and possible responsibility for any disruptive or corrupt acts that do occur. On both sides, however, these concerns are probably exaggerated, and may disguise other motivations for restricting non-resident voting. In the first instance, again, recent experience suggests low electoral participation rates within non-resident communities. In the Mexican example, one would expect nowhere near as many as the seven million possible Mexican nationals actually to cast ballots in the United States if made eligible to do so. Modern electoral management techniques, along with the use of international observers, should reduce the risk of fraud even in large-scale non-resident polling.20 The stabilization of democratic practices in most countries has also reduced the risk of disturbances that in the past may have been associated with election campaigns, especially in early transitional phases, and it is less likely still that host countries would be held responsible for particular electoral abuses. Thus, some countries, including Germany and Switzerland, have recently abandoned laws under which foreign residents could vote in home-country elections only by mail.21 To the extent that massive voting by non-resident communities might present serious host-country issues, they could be addressed in bilateral agreements.22 The Administration and Cost of Elections Project, an undertaking sponsored by the International Foundation for Election Systems, the International Institute for Democracy and Electoral Assistance, and the UN Department of Economic and Social Affairs, has issued a "best practices" background paper on the administration of foreign voting. See www.aceproject.org. See Expatriate Mexican Voting Is Feasible, Panel Reports, L.A. Times, Nov. 13, 1998 (estimating costs of administering Mexican election for non-resident citizens in the United States to range from $76 to $356 million). The expanded possibilities for absentee voting by resident citizens also evidences the probability that such voting can be adequately insulated from abuse. In recent presidential elections in the United States, one state (Oregon) conducted all voting through mail or drop-offs; others (including California) allowed absentee balloting at the voter's option. See, e.g., The Absentees Are Also Present, Economist, Oct. 28, 2000. Council of Europe, supra note 6, para. 80. Before recent Croatian parliamentary elections, the government of Bosnia-Hercegovina protested Croatian government plans for non-resident Croatian voting on Bosnian soil. See Bosnia Presidency Member Slams Voting Deal for Croatian Elections, BBC Summary of World Broadcasts, Dec. 22, 1999 (available on Lexis). The balloting, however, appears to have been undertaken without incident. Mexico's elections commission has convened recent conferences to study external voting mechanisms employed by other countries. See www.ife.org.mex. Included in the contributions to those gatherings 142
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As dual nationality has attracted the attention of scholars and policymakers, others, including most notably David Martin, have argued that dual nationals should be permitted to vote only in their country of residence (in other words, that the franchise should not extend to non-resident dual nationals).23 Martin first suggests that non-resident voting by dual nationals will divert such persons from deeper political engagement in the place that they live.24 But that point rests on the premise that individuals have a fixed quantum of energy that they devote to political participation, and that participation in one arena will inevitably subtract from participation in another. Along the same lines, it also seems to suggest that obstructing participation in homeland politics will inevitably channel energy into that of the host country. That seems unlikely; the probability of casting a host country vote would not likely increase with loss of a homeland vote. People will participate in those collectivities (many or few) of which they feel a part and in which they perceive interests. Participation rights in one community will not necessarily affect exercise of rights in another. Martin also objects to non-resident voting by dual nationals on the ground that it violates the equality norm central to the modern conception of citizenship.25 To the extent dual nationals are permitted to vote in both countries of nationality, the argument runs, that privileges them over their mono-national counterparts. I think there are at least two responses. First, it may overestimate the importance of the franchise as a citizenship right and measure of equality. As a mono-national American, I would be jealous of a dual national Irish-American colleague not because he might be able to vote in Irish elections (more of a burden than a privilege), but rather because he enjoys the personal and professional advantages of EU citizenship (to live, travel, and work there without restriction). If rights other than the franchise loom large, the answer to the equality objection is to prohibit dual nationality altogether, not to limit the parallel political rights that may come with the status. Second, assuming the importance of the franchise, depriving non-resident dual nationals of their right to vote presents an equality problem of its own. In the resulting framework, some citizens (resident and non-resident mono-nationals) have full political rights, while other citizens (non-resident citizens who have another nationality) do not. To the extent that the inequality is internally generated (that is, within the citizenship regime itself, rather than the result of interplay with other were accounts by American state elections officials who supplied logistical assistance and advice for elections undertaken on U.S. soil by Eritrea, South Africa, and Armenia. See Martin, supra note 8, at 25-31; see also T. Alexander Aleinikoff, Between Principles and Politics: The Direction of U.S. Citizenship Policy 36 (1998) (proposing bilateral agreements to limit voting of dual citizens to place of residence). Peter Schuck, by contrast, accepts arguments for voting by dual nationals in both countries of nationality. See Peter H. Schuck, Plural Citizenships, in Immigration and Citizenship in the 21st Century 149, 167-69 (Noah M.J. Pickus ed. 1998). See Martin, supra note 8, at 26. See id. at 15-16, 30 ("What is most fundamentally at stake is the equality that has been a key element in the basic understanding of what it means to be a citizen"). 143
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regimes), the problem indeed seems more serious than that posed by holding franchise rights in more than one polity. To invoke a colloquial articulation of the problem, the non-resident dual national becomes the "second-class citizen" if denied the franchise, whereas it is harder to characterize the mono-national as such just because his neighbor also has an additional vote in some other country. Implicit in these arguments for non-resident suffrage is a rejection of a resurrected distinction between citizen and national on the basis of status either as a nonresident or as a dual national. Although the distinction between citizenship and nationality has been largely eroded in most countries, recent Mexican nationality legislation poses the prospect of its redeployment by designating Mexicans resident abroad as nationals only, not entitled to all the rights of citizenship. However, I would agree with Rainer Baubock's characterization of the Mexican reforms as "establish [ing] dual citizenship with a differentiation of rights according to residence."26 Indeed, prevalent adoption of the residence paradigm for suffrage issues belies meaningful resurrection of the distinction as a designation of status. In the face of greater diasporic mobility, many individuals would shift frequently between the two categories in any event. To the extent that residence appropriately defines the relationship of the individual to the polity, laws can be tailored to modify rights and obligations in terms of residency. In that case, the distinction between citizenship and nationality remains superfluous.
III. CHANNELS OF PARTICIPATION The choice of representation mechanism for non-resident citizens would seem to depend on context. Assimilated representation - that is, registration and polling through last place of in-country residence - is more easily implemented in most countries, especially those, such as the United States, whose territorially-based districting system is constitutionally entrenched. (The prospect of creating a separate congressional district for overseas Americans is non-existent.) It is also preferable where the numbers of non-resident citizens is small or unengaged, and thus does not warrant discrete representation in national legislatures. Assimilated representation also has the advantage of maintaining the formal equality of non-resident voters, insofar as their vote counts as much as their resident counterparts. Where feasible as a matter of constitutional structure, however, there are an increasing number of contexts in which discrete representation would seem the better mechanism for their representation. Discrete representation - that is, affording nonresident citizens separate representation - is preferable insofar as non-resident citizen interests are themselves discrete from those of resident voters.27 Dispersed through Rainer Baubock, Introduction, in From Migrants to Citizens: Membership in a Changing World 305, 307 (T. Alexander Aleinikoff & Douglas Klusmeyer eds., 2000). In this respect, a justifiable distinction could be drawn between short- and long-term non-residents. Short-term non-residents will likely maintain an interest in matters of local and provincial government of the jurisdiction from which they came and to which they will return; thus their registration would be better maintained with respect to that jurisdiction rather than transferred to a discrete non-resident 144
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in-country territorial jurisdictions, non-resident voters, even where their franchise is facilitated and their votes are formally equal to resident votes, may be less likely to have their distinct interests represented in national decisionmaking. This drawback would seem particularly pronounced in those communities in which the non-resident population is both large and otherwise engaged in homeland affairs. That is not to say that such discrete representation would need always be in proportion of numbers. In most national polities, non-resident citizens will have lesser interests in home-country policymaking than resident citizens (reflected in lower electoral participation rates where non-residents are permitted to vote),28 and that fact seems justifiably reflected in lower proportional levels of direct representation. Even at lower proportional levels, from the non-residents' perspective discrete representation may still be preferable to assimilated representation. With discrete representation comes a direct, undiluted voice in decisionmaking. In assimilated voting systems, at least those based on territorial jurisdiction, non-resident interests are less likely to find legislative advocates. The disadvantages of assimilated representation - and indeed of disqualification or restricted franchise - are mitigated by non-electoral forms of political participation. In many European countries, official or semi-official "councils" of non-residents (sometimes including non-citizens of national descent) have been established to represent non-resident interests, often through ministries of foreign affairs. In the United States, residents abroad send a voting delegation to the Democratic Party presidential nominating convention.29 "district," Long-term non-residents, by contrast, may appropriately be excluded from matters of local governance on the ground that they will likely have lost the requisite stake in such affairs. Croatia has adopted an interesting approach to non-resident representation, affording non-resident voters representation according to the number of voters actually participating in a particular parliamentary election. It appears able to do so because the size of its parliament itself varies from election to election; thus the model is of limited utility in the vast majority of countries that constitutionally fix the size of national legislatures. In such countries as Ireland, Italy, and Greece that have adopted generous citizenship policies allowing the acquisition of citizenship by descent from a single grandparent and nothing more - one can make a strong argument for denying the vote to those non-residents who have never resided in the home country, on the grounds that the interests of such non-residents in home-country government will be tenuous. Most countries, including the United States, that provide for non-resident voting appear to require that the citizen have resided at some point in the home country. See 42 U.S.C. § 1973ff-6 (2000) (defining overseas voter as person who either was or would be qualified to vote "in the last place in which the person was domiciled before leaving the United States"). For details, see www.democratsabroad.org. Although the creation of a separate, voting congressional district for non-resident Americans would require a constitutional amendment (and thus seems a nonstarter), it is not implausible that a non-voting delegate could be established to represent non-resident interests in Congress. Such representation has been established by statute for U.S. territories such as Guam and Puerto Rico, as well as for the District of Columbia. See 48 U.S.C. § 1711 (2000) (providing for non-voting delegate from Guam); 48 U.S.C. § 891 (2000) (providing for "resident commissioner" from Puerto Rico); 2 U.S.C. § 25a (2000) (non-voting delegate from the District of Columbia). See also U.S. General Accounting Office, The U.S. Constitution and Insular Areas 26-28 (1998) (describing role of non-voting delegates in the House of Representatives). 145
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Perhaps most importantly, few (if any) countries appear to limit political campaign contributions on the basis of residence (or status as a dual national).30 The wealth of emigrant communities relative to their homelands has in some cases afforded them significant political power, as a source for campaign funds, even where their franchise is restricted. It has become routine, for instance, for Latin American politicians to make campaign swings through emigrant populations resident in the United States, even where those populations cannot vote or where (in the absence of in-place voting mechanisms) they do not vote in large numbers.31 In addition to campaign contributions, non-residents can engage in political speech targeted at home electorates. Indirect forms of political participation by non-residents further evidence the interests of non-resident communities in home-country government, as well as the inevitability that such interests will exert themselves in available channels of influence. In the long run, the political rights of non-residents (and of dual nationals) may become a subject governed by international law. There have already been some efforts by international organizations, most notably the Council of Europe, to expand the channels for the political participation of non-resident communities.32 As state practice increasingly recognizes such rights, it may indicate an emerging norm in favor of providing some voice for non-resident communities in home country governance.
IV. OFFICEHOLDING BY DUAL NATIONALS In contrast to the franchise, officeholding by dual nationals is specifically barred in many countries and appears rare in those countries that permit it. Legal restrictions Mexican law does prohibit fundraising outside of Mexico, but this ban is apparently unenforced. See Mexicans Fight to Use Law Allowing Votes from Abroad, Dallas Morning News, Apr. 5, 1998, at 1A (describing widespread fundraising activities in the United States by Mexican candidates). See, e.g., Jones-Correa, supra note 4, at 164-66; Mexican Candidates Look to the U.S. for Swing Votes, L.A. Times, May 5, 2000, at Al; Mexican Politicians Cross the US Border in Search of Votes, Financial Times, May 6, 1998, at 9; Salvadoran Political Hopeful Campaigns Here Among Exiles, L.A. Times, Feb. 20, 1999, at 1. In addition to campaign contributions, through remittances nonresident communities are perceived to have substantial influence over the electoral preferences of friends and relatives back home, giving rise to a swing bloc of "MoneyGram Mexicans." See Presidential Candidate Cuauhtemoc Cardenas' L.A. Campaign Stop Reflects Close Ties That Span Border, L.A. Times, May 7, 2000, at Bl. See Council of Europe Council of Ministers, Recommendation 8 (1986) (urging that Member States allow all non-residents to vote from their country of residence). Also indicative of the emergence of international law norms respecting the political rights of non-residents is the Convention on the Rights of All Migrant Workers and Members of Their Families. Article 41 of the Convention provides that "[m]igrant workers and their families shall have the right to participate in the public affairs of their State of origin and to vote and to be elected at elections of that state," a right which host countries appear to have an obligation to facilitate. See id. art. 41(2) ("The States concerned shall, as appropriate and in accordance with legislation, facilitate the exercise of these rights."). By defining a migrant worker to include only those who work in a state of which the worker is not a national, however, the Convention by its terms does not apply to dual nationals. 146
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on officeholding appear more easily justified than those on voting. However, blanket prohibitions on officeholding by dual nationals may be overinclusive. With respect to elective office, voters can be trusted to decide if a dual national can effectively represent their interests. With respect to appointive office, standard conflict-ofinterest rules could be applied to narrow the range of positions for which dual nationality stands as a disqualification. Several countries have constitutionally disqualified dual nationals from holding certain national offices. Under section 44 of the Australian Constitution, citizens of foreign states are prohibited from sitting in the federal legislature.33 Recent Mexican nationality legislation, while accepting dual nationality, bars dual nationals from federal legislative, executive, and judicial office. Other countries that constitutionally bar dual nationals from national legislative office include Bangladesh, Malawi, and Latvia, as well as in Hong Kong. Taiwan, Russia, and Israel are among other countries barring dual nationals from certain public positions. The United States Constitution does not disqualify dual nationals from holding federal elective office, although the constitutional disqualification of naturalized citizens serving as President reduces the possibility for a dual national serving as chief executive. In the United States, dual nationals are by administrative practice ineligible to receive some forms of security clearance.34 In 1998, a congressional staffer had his security clearance revoked when it was learned that he held Irish citizenship. Other countries presumably impose similar restrictions on national security positions. The 1998 Mexican reforms appear to allow sole Mexican citizens a preference for all public employment. Officeholding by dual nationals has traditionally also been restricted by nationality laws of the other country of nationality (that is, the country in which the individual does not seek or hold office). Officeholding under a foreign power has been in many countries a ground for expatriation, effectively precluding dual nationals from holding office in another country. Although a handful of countries continue to carry such provisions, most have abandoned them. Notwithstanding the absence of express legal prohibitions in many countries, the incidence of dual nationals holding office at any level of government appears limited but growing. Enforcement of the Australian ban on dual nationals in parliament Several candidates for the Australian parliament have been disqualified for failure to renounce alternative citizenships. See Australian Election Commission, Electoral Backgrounder No. 4, available at www/aec.gov.au/pubs/backgrounders; Gianni Zappala & Stephen Castles, Citizenship and Immigration in Australia, in From Migrants to Citizens, supra note 26, at 32, 58-62. Under adjudicative guidelines issued by the Defense Security Service (and applicable to all U.S. government departments), the "exercise of dual citizenship" may indicate a "foreign preference" that will "raise a security concern." See 32 CFR § 147.5 (2001). The exercise of dual citizenship includes the mere possession of a foreign passport. The security concern can be "mitigated" where the dual citizenship is based solely on parental nationality or where the individual "has expressed a willingness to renounce dual citizenship." See id. For positions in the Department of Defense, "acceptance and active maintenance of dual citizenship" appears to preclude the granting of a clearance. See 32 CFR § 154.7(f)(2001).
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exposed at least one case, in the course of which the dual nationality of other Australian parliamentarians was suggested. Similarly, an attempt to set aside the election of a dual citizen to the parliament of Bangladesh provoked a countercharge that more than a dozen standing members held British passports, including three ministers. The government of Cambodia includes dual nationals (an issue expressly resolved in negotiations leading to the peace settlement there). A dual DominicanAmerican citizen serves as a New York City councilman; a dual Colombian-American citizen serves on a city council in New Jersey (and recently lost a bid to represent overseas Colombian citizens in the Colombian senate). A handful of naturalized Americans returned to high-level positions in the states of the former Soviet Union, in at least some cases renouncing their American citizenship in the process.35 Disqualification of dual nationals from public office appears mostly to date from an era in which the prospect of dual allegiances amongst decisionmakers struck at the heart of the national interest. In a world of hostile nation-states, virtually all matters of foreign policy were of the zero-sum sort; that is, the interests of any two states would rarely coincide. Indeed, the domestic strength of one state could be inimical to others, as any two might find themselves at any time to be threats to each other's interests or even survival. Bonds of loyalty, in the sense of obedience to sovereign and nation, were also taken more seriously, so that the prospect of conflicting duties to different masters posed a serious concern, especially for the policymaker. The specter of the dual national as potential saboteur or fifth columnist indeed loomed large in the rejection of the status for much of the twentieth century. These conceptions surely have figured in prohibitions on public officeholding by dual nationals. The fact that so many prohibitions are of a constitutional status indicates the significance afforded them, at least at the time of their adoption. Recent developments would appear greatly to diminish the threat of officeholding by dual nationals. What is good for one country is no longer necessarily bad for another. That is certainly the case for domestic policy; indeed, it is now often the case that what is good for one country is also good for others. (Health care policy comes to mind as an example.) The same is often true in the foreign policy arena;
For these and other examples, see, e.g., Thomas M. Franck, Clan and Superclan: Loyalty, Identity and Community in Law and Practice, 90 Am. J. Int'l. L. 359, 379-80 (1996); Pledging Multiple Allegiances, L.A. Times, Apr. 6, 1998, at 1; Dual Citizens Challenge the Notion of Nationality, New Orleans Times-Picayune, Feb. 8, 1998, at A22; Hackensack Councilman in Columbia Senate Race Envisions Stability in His Homeland, Bergen County Record, Mar. 6, 1998, at Al; Controversial Bar on Dual Citizenship Removed from Cambodian Law, Agence France Presse, June 10, 1996. Other relevant examples, though not involving formal officeholding by dual nationals, include the return of Hussein Mohammed Aidid to Somalia to assume his dead father's position as a powerful warlord, even while he maintains his naturalized American citizenship; the stripping of the citizenship of a Turkish parliamentarian upon discovery that she had acquired U.S. citizenship without informing Turkish authorities, as required of all Turkish citizens desiring to retain Turkish citizenship upon naturalization elsewhere; and questions raised about the fitness of Sonja Gandhi to be prime minister of India because of her original (though renounced) Italian citizenship. 148
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national interests are more likely to coincide, and the competitive aspects of interstate relations have been significantly reduced. The possibility of hostilities among the vast majority of state pairings is almost nil..36 Interstate conflict that does occur is more driven by rogue leaders than by the conflicting interests of polities; the notion of individual obedience to state, deriving from the formal tie of citizenship, seems today almost quaint. These facts of the modern world have, as a general matter, rendered far less likely the possibility that a dual national officeholder will find herself conflicted by the interests of her two countries in the exercise of decisionmaking responsibilities. Even where conflicts do appear, one would think government service to locate the individual's primary commitment as well as selfinterest. After all, public service positions are jobs, with neutral measures of performance. To draw some analogies to other forms of association - an increasingly appropriate mechanism by which to illuminate citizenship frameworks, I think - the direction of nation-states is today less like that of competing corporations than it is like that of non-governmental organizations. One would be surprised if a senior manager in one corporation maintained significant shareholdings in a direct competitor. That is, presumably, too much a zero-sum world to tolerate such conflicting incentives; what will be good for one company will in fact probably be bad for the other. On the other hand, it would not seem so strange if the Secretary-General of Amnesty International were at the same time a rank-and-file member of Human Rights Watch. Though those two organizations compete for funds and membership, and may adopt different, possibly inconsistent strategies for advancing human rights, one would not expect membership in the one organization, by itself, to diminish leadership capacity in the other.37 With respect to public elective office, the paucity of bilateral points of conflict in the spectrum of decisionmaking should leave the fitness of dual nationals in the hands of the electorate. Assuming full disclosure, voters can decide for themselves whether a particular individual can best represent them notwithstanding (or, in some cases, by virtue of) the candidate's status as a dual national.38 In collective decisionmaking bodies, the presence of some dual nationals would in most countries I would concede that some such pairings do exist, and that blanket prohibitions may in some cases be justified in the genuinely national interest. The Baltic states again provide the paradigmatic example, where dual national officeholding would pose the specter of insinuated Russian interests contrary to national ones. See also Taiwan Lawmakers Warn President on Dual Citizenship Officials, BBC Monitoring (Central News Agency, Taipei), May 26, 2000 (available on Lexis) (reporting protest aimed at dual nationals in new Taiwanese government, lest Taiwan be degraded as a "new colony of the United States"). The example of dual national athletes also seems instructive here. No one seems to question the loyalty of an increasing number of dual nationals who compete on Olympic teams even, presumably, when that individual is competing against his other country of nationality. See Candidates' Passports not a Factor for Voters, Hong Kong Standard, Apr. 30, 1998 (available on Lexis) (reporting poll in which Hong Kong voters expressed support for legislative candidates disqualified on the basis of their dual nationality). 149
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pose a minimal concern on a minimal number of issues. (It is important to remember that dual national status by itself is unlikely to increase the actual risk of conflicted decisionmaking, as sentimental attachment in favor of an original home country is likely to persist whether or not the formal tie does. That is a part of political tradition, in the United States at least.) Of course, one might not expect to find dual national legislators serving on congressional intelligence committees, but the number of such assignments from which dual nationals might be excluded would be limited.39 It seems inevitable, over the long run, that a greater number of dual nationals will appear in national legislatures, and there are signs that restrictions on national officeholding by dual nationals in some countries will be repealed.40 As for the election of a dual national as a head of state, the prospect remains unlikely in most countries (or at least the retention of the status once elected), if only because it may remain intolerable from the perspective of the other state of nationality.41 But a dual national as head of state no longer seems bizarre or self-contradictory. As for appointive office and the civil service, there seems little cause for restricting the eligibility of dual nationals, except in the national security apparatus. How dual nationality might diminish one's fitness as an official in domestic policy agencies, or as a teacher, or even police officer, is unclear; there does not appear even the possibility of conflict. Insofar as there appear to be few restrictions on such service, one can assume that dual nationals are in fact holding such positions with increasing frequency and without controversy. Nor, although the incidence surely remains low, should dual nationality disqualify an individual from service at most levels of the judiciary. That leaves the relatively small number of positions relating to national security for which dual nationality may serve as a disqualifying factor. In the broad scheme of things, this is a relatively trivial disability, as employment in national security positions stands at the far margins of political rights. Even with respect to such positions, however, blanket prohibitions may be unjustifiably overinclusive. In the For those who might fret at the possibilities for conscious acts of disloyalty, laws against espionage, treason and other criminal acts remain available to dispatch the individual foolish enough to reveal his real loyalty by maintaining the formal citizenship tie. As has been proposed in Australia. See Zappala & Castles, supra note 33, at 61. Thus, after his election as president of Lithuania, the dual American-Lithuanian Valdas Adamkus appears to have renounced his U.S. citizenship in the face of pressure from the U.S. Department of State rather than from his constituents. In such cases the United States may be concerned that it will be held responsible for the acts of the individual in his capacity as the leader of another nation; for example, Russia might try to take the United States to task for some decision that a U.S. citizenpresident of Lithuania might make, beyond American control. See also Schuck, supra note 23, at 179 (arguing that dual national American citizens should not be permitted to hold high office in other countries). That seems to me a perhaps even more far-fetched concern than those posited from the perspective of the country of which the dual national is an officeholder, and such punctiliousness, already eroding for positions below those of head of state, may be abandoned altogether in the medium- to long-term. Other countries that provide for expatriation for service in a foreign government include Mexico and South Africa. 150
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first place, the number of government positions requiring security clearances (at least in the United States) has moved far beyond the traditional core of foreign policy and defense. Even in defense and foreign ministries, the argument for categorical disqualification is not an overwhelming one, especially where the alternate nationality is a friendly one (among the growing ranks of democratic states, an increasingly expansive category). By way of testing the analysis, take the recent case of the U.S. congressional staffer whose security clearance was revoked (thus precluding him from participating in an investigation of campaign finance abuses then being pursued by his committee) when it was discovered that he also held Irish nationality. One might argue that the forfeiture of additional nationality is a small price to pay for the privilege of government service. But what if this individual's identification with the Irish community was strongly affective ("identification with," I think, being distinguishable from "loyalty to"), and forfeiture would deprive his children of the chance to hold Irish nationality?42 And what if the termination came at mid-career, at a point at which he might not be able to qualify for equivalent private sector positions (many of which, in the American defense complex, themselves require security clearances)? At the same time, the prospect of diminished job performance owing to the alternate Irish nationality would seem in almost all contexts to be minimal. Sustaining the disqualification thus emerges as a closer call than might be expected. Of course there would be some specific national security responsibilities from which the dual national might appropriately be disqualified. One would not perhaps want the Irish-American dual national leading the U.S. delegation in bilateral negotiations with Ireland, if only for sake of appearances. But those situations can readily be handled through a standard conflict-of-interest approach, as is well established in the United States to require federal officials and judges to recuse themselves from decisions in which they have a financial interest.43 And it should perhaps go without saying that one could not hold office in two national governments at the same time, if mainly for the reason that one cannot effectively perform both of two full-time jobs. That is a problem of dual officeholding, not of officeholding by dual nationals. The individual in fact refused to give up his Irish citizenship when confronted with the revocation. "For me it is a matter of heritage," he asserted, "honoring my family forbears and paying a sentimental debt to those Irish who had to leave their home in the past for economic or political reasons." See US Official Must Waive Irish Papers for Security, Irish Times, Apr. 8, 1998, at 7. See Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 Emory L.J. 1411, 1482-83 (1997) (elaborating on conflict-of-interest approach). Professor Martin criticizes this proposal for its inability to deal with unexpected conflicts, which he thinks are likely to arise in this context. See Martin, supra note 8, at 32. It is true that with the increasing multilateralization of international affairs, it would be hard to insulate oneself from issues on which the other country of nationality also had a policy, possibly in conflict with that of the government in which one serves. But the multilateral context also seems one in which the supposed conflict will be less keenly felt, if at all. Would a FrenchAmerican dual national, for example, be less effective in representing U.S. opposition to the International Criminal Court because France supports it? Certainly no less than a mono-national American who is also a member of Amnesty International. 151
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V. CONCLUSION Dual nationals enjoy an increasingly broad array of political rights. As more countries move to acknowledge the maintenance by their citizens of multiple nationalities, few have qualified that acknowledgment to bar voting by dual nationals. Although some have maintained restrictions on officeholding by dual nationals (many of them longstanding, antedating the advent of globalization), there will likely emerge more examples of dual nationals holding positions in national governments in the future, as the justification for such restrictions diminishes. Dual nationality should in most cases today not compromise an individual's capacity to participate fully in the politics of both countries of citizenship. Extension of these political rights to dual nationals evidences full acceptance of the status itself. Extension of the franchise to non-residents (both mono- and multiple nationals) evidences a new definition of political space, one in which boundaries are no longer defined in territorial terms.
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CHAPTER 6 COMMENT
POLITICAL RIGHTS OF DUAL NATIONALS IN TURKISH LAW
Nuray Eksi
INTRODUCTION Dual nationality was accepted by an amendment of the Turkish Nationality Act in 1981. As a result of the amendment, a Turkish national can obtain the nationality of another state without leaving his original nationality. In other words, abandonment of previous nationality is not necessary. The only condition for dual nationality is the permission of the Interior Ministry. The applicant may be given a certificate of permission which indicates that there is no legal obstacle to keeping Turkish nationality while acquiring another. The legal status of Turkish nationals who acquired another state's nationality remains unchanged. Despite the second nationality, no discrimination is made between Turkish dual nationals and Turkish mono-nationals. In other words, dual nationals enjoy all the rights accorded to Turkish mono-nationals.
I. VOTING RIGHTS OF DUAL NATIONALS IN TURKISH LAW Resident or non-resident Turkish dual nationals have the right to vote. A second nationality is not an obstacle to voting in political elections held in Turkey. Turkish citizens living abroad were given the right to vote by amendment of the Turkish Constitution, which took effect on July 23, 1995. Article 67 of the Constitution provides that the applicable measures to secure the right to vote of Turkish citizens abroad shall be determined by a code. This provision obliges the Turkish Grand National Assembly to pass legislation that would regulate the requirements and process of voting by non-resident Turkish nationals. Unfortunately, despite the wording of the Constitution, no code has yet been adopted. In practice, non-resident voters return to Turkey for voting. Ballot boxes are located at the Turkish borders. That means that external voting does not exist. David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 153-156 © 2003 Kluwer Law International. Printed in Great Britain.
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Unfortunately, non-resident voters do not have separate representation in the Turkish Grand National Assembly on behalf of a non-resident community.
II. HOLDING POLITICAL OFFICE BY DUAL NATIONALS IN TURKISH LAW The second point that attracts much more attention is holding political office by dual nationals. A. General Provisions Turkish nationality is one of the conditions for being a civil servant under Article 48(1) of Civil Servants Act, numbered 657. No specific provision exists as to dual nationality. However, according to the judgments of the Council of State (Conseil d' Etat), acquiring foreign state nationality along with Turkish nationality is not an obstacle to being a civil servant or continuing to have a duty and power conferred on an individual by the government.1 According to Article 76/I of the Constitution of 1982,2 every Turkish citizen who is at least 30 years old can be elected as a member of Parliament. The Constitution does not determine the system of elections to the Grand National Assembly. The electoral system and the details of the electoral process are regulated by the Act on Election of Members of Parliament. No legal restrictions or prohibitions on office-holding by Turkish dual nationals are in existence. They can have a position in the legislative, executive, or judicial body. Dual Turkish nationals can be candidates for political elections and be Members of Parliament. Despite the legal flexibility, the presence of some dual nationals in the Parliament and in the government may attract public concern. Some may find this situation intolerable. Because of different reactions, a candidate might choose not to declare 5th Chamber of Council of State, E. 1987/1804, K. 1989/1655, T. 9.10.1989: (1990) 78-79 Danistay Dergisi, pp. 228-230. According to Article 68 of the Ottoman Constitution of 1876, persons who claimed another state's nationality, in addition to Ottoman nationality, could not be elected as a member of the Chamber of Deputies. For the text of Article 68, see Seref Gozubuyuk/Suna Kili, Turk Anayasa Metinleri 1939-1980, Ankara 1982, p. 36. The Constitution of 1924 had the same provision. Article 12 of the Constitution of 1924 prohibited the election of a person who claimed foreign nationality along with Turkish nationality as a member of the Turkish Grand National Assembly. For the text of Article 12, see Suheyl Batum/Necmi Yuzbasioglu,Anayasa Hukukunun Temel Metinleri, Istanbul 1997, pp. 6-7. Both provisions were not intended to reduce as low as possible the number of cases of multiple nationality. It was considered that cases of dual nationality were liable to cause political difficulties and could be an excuse to act on behalf of some imperialist states in the Parliament. Ergin Nomer, Vatandasliga Kabul ve Cifte Vatandas.lik, Ites Jahrbuch 1998-1999, p. 302, footnote 8; Ergin Nomer, Turk Vatandaslik Hukukunun Genel ikeleri, IU Cumhuriyetin 75. Yil Armagan, Istanbul 1999, p. 740, footnote 17. 154
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his dual nationality and may try to keep it secret. During the election, the revelation of dual nationality could become a potent weapon for attack by the opposition. Nevertheless, except in the national security service, office holding by dual nationals no longer seems bizarre or a contradiction to loyalty and allegiance to the Turkish nation-state. B. The Merve Kavakci Case Merve Kavakci, who had Turkish and U.S. nationality, was elected as a Member of Parliament. She attended the opening session of the Turkish Grand National Assembly wearing a headscarf (kopftuch). Most of the Members of Parliament protested her action. Her image was found deeply intolerable and manifestly incompatible with the customs of the Parliament. After that event, she became the focus of wide-ranging criticism. In the midst of extensive media and public concern over the headscarf incident, it was revealed that Kavakci had acquired U.S. citizenship shortly before her election. Because she had not obtained the permission of the Interior Ministry before naturalizing in the United States, the Council of Ministers stripped Merve Kavakci of Turkish citizenship by exercising its discretion under Article 25(a) of the Turkish Nationality Act. The essential impact of denaturalization was to force her from her post in the Parliament. Seeking to cancel the Council of Minister's decision, she applied to the Council of State. The summary of the judgment of 10th Chamber of the Council made the following key points:3 - According to the documents received from the American Immigration and Naturalization Service (INS), Merve Kavakci acquired a U.S. green card (permanent resident status) in 1992 and then adopted American citizenship in 1999 on oath. - According to Article 25 (a) of the Turkish Nationality Act, the Council of Ministers may denationalize persons who deliberately adopted foreign nationality without permission from the Turkish authorities. However, if the person concerned applies for permission prior to the denationalization decision, the administration should ordinarily proceed to consider the request. - Because the decree of the Council of Ministers relates to denationalization according to Article 25(a) of the Turkish Nationality Act, it should be examined whether the substantive requirements are met under the Nationality Act and then whether the Council of Ministers used their power of discretion within objective criteria and for the public interest. - The basis of the act of administration in this case is that the plaintiff adopted the citizenship of another state without permission, did not herself make any application for permission, and thereby acted against the requirements and provisions of the citizenship status quo. 10th Chamber of Council of State, E.1999/2196, K.2000/315, T.8.2.2000: (2000)2 Ankara BD, pp. 342-350. 155
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- It is the Nationality Act that necessitates denationalization by the Council of Ministers when the conditions are realized under Article 25 (a) thereof. - Because no information or document in the file indicates that the administration exercised its discretion outside the limits of objective criteria or neglected the public interest, the argument against the loss of Turkish nationality is judged to be groundless. - Under the foregoing, it has been unanimously decided by the Council of State to dismiss the Merve Kavakci case on February 8, 2000. Nonetheless, some foreign media and commentators have charged that the denationalization of Merve Kavakci from Turkish nationality was achieved as a political game of the opposition parties. They have the idea that the ground for losing her post in the Parliament was her political ideology or the mere fact of her dual nationality. In reality, the reason was different, and the legal basis of the denaturalization was Article 25 (a) of Turkish Nationality Act and her failure to seek permission for her dual national status. As has been explained before, dual Turkish citizens have the right to vote and are able to hold a post in the Turkish Parliament. In other words, no legal prohibitions or restrictions exist in Turkish law concerning dual Turkish nationals' voting or having political posts either in Parliament or in the government. Any person, including a politician, who wants to acquire foreign state nationality without losing Turkish nationality is obliged to obtain permission from the Turkish government. If the relevant person has acquired the foreign nationality without obtaining the official permission from Turkish Government, then the Council of Ministers may decide to denationalize that person. According to the information received from the American INS, Merve Kavakci, without Turkish permission, acquired American citizenship in 1999. Manifestly, therefore, from the point of view of Turkish law, her denationalization complied with the rules and standards of the Turkish Nationality Act.
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CHAPTER 7
CHALLENGES OF INTERNATIONAL COOPERATION IN A WORLD OF INCREASING DUAL NATIONALITY
Rey Koslowski
INTRODUCTION Comparative analysis is necessary for a better understanding of dual nationality and the state policies that lead to its occurrence or prevention. Multiple nationality, however, is primarily a function of the interaction of the nationality policies of two or more states, and its prevention has, historically, involved international cooperation, whether on a bilateral or multilateral basis. This paper goes beyond comparative analysis and considers dual nationality from an international relations perspective with a view towards international cooperation, or the lack thereof. Most states have not, in principle, endorsed dual nationality, and some states have entered into multilateral agreements aimed at international cooperation on naturalization and expatriation policies in order to minimize its occurrence. The development of a set of international legal norms against dual nationality over the past century helped delineate what parts of the world's population belonged to which states - they in effect grounded a "demographic boundary maintenance regime" (see Koslowski 1998; 2000, ch. 7). More and more states, however, are changing their laws to permit dual nationality explicitly (e.g., Turkey and Mexico) and other states whose laws ostensibly forbid dual nationality have often tolerated it in practice (e.g., the United States and Germany). Although some commentators and policymakers have argued for reversing this trend and taking measures to restrict dual nationality, unilateral attempts to prevent dual nationality are more difficult to put into effect than they might first appear. Therefore, without international cooperation to reduce cases of dual nationality, the numbers of dual nationals will increase. Without international cooperation to deal with the side effects of dual nationality, growing numbers of dual nationals may increase the likelihood of the legal and political conflicts between states that had prompted international cooperation to reduce dual nationality in the first place. I will make these arguments in three steps: David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 157-182 © 2003 Kluwer Law International. Printed in Great Britain.
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First, I will describe the development of the demographic boundary maintenance regime based on international norms against dual nationality and the contemporary breakdown of this regime through defection by states that are now tolerating, or even actively embracing, dual nationality. Second, I will elaborate on why unilateral efforts to stem dual nationality will not work by comparing the situations of Germany and Turkey to that of the United States and Mexico. Third, I will turn to the policy challenges presented by increasing cases of dual nationality as they relate to the future of international cooperation, specifically addressing multiple military obligations, economic globalization and the commodification of citizenship, and double voting.
I. INTERNATIONAL COOPERATION TO REDUCE CASES OF DUAL NATIONALITY Individuals may acquire dual nationality at birth, through marriage, by claiming ancestral lineage or through naturalization. Conflicts of laws among states regarding nationality are rooted in differing principles governing nationality. As modern nationality laws developed throughout the 19th and early 20th centuries, states adopted either the jus sanguinis (ancestral lineage) or the jus soli (birthplace) principle, thereby delineating which inhabitants of the state were citizens. Since both jus sanguinis and jus soli were internationally recognized as legitimate principles for the ascription of nationality, it meant that cases of dual nationality would be unavoidable - for example, when a national from a jus sanguinis state has a child in a jus soli state. Dual nationality has historically led to serious international disputes and even military conflict. Following the doctrine of "perpetual allegiance," Great Britain considered naturalized American sailors bora in Great Britain to be subjects of the British crown and impressed them into military service, thereby triggering the War of 1812. When emigrants naturalized and became United States citizens, they often found themselves possessing two nationalities and two sets of military obligations. France, Spain, Prussia, and other German states routinely drafted naturalized Americans when they visited their homelands. Much as the problem of multiple military obligations associated with dual nationality was a central issue in U.S.-British relations at the outset of the 19th century, it became a major issue in U.S. relations with the German states in the latter half of the 19th century and a preoccupation of George Bancroft, the German-educated historian who became the first U.S. Ambassador to the North German Federation in 1867. Bancroft argued that states should "as soon tolerate a man with two wives as a man with two countries; as soon bear with polygamy as that state of double allegiance which common sense so repudiates that it has not even coined a word to express it" (Bancroft 1849). As the U.S. Ambassador in Berlin, he negotiated a treaty in 1868 with the North German Confederation in which United States naturalization was recognized and German nationals secured a limited right of expatriation. After five years residence abroad, nationals of the North German Federation could 158
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renounce their nationality and naturalize to the United States. However, the United States accepted the German prerogative to consider that naturalization null and void should a German who naturalized in the United States return to Germany and live there for more than two years. Conservatives in the Prussian War and Interior Departments attempted to stop Bancroft's proposed treaty by burying it in red tape. Bancroft publicly commended the egalitarian nature of the Prussian Army in order to win over supporters and he managed to strike up a good working relationship with Bismarck, who headed off bureaucratic obstacles and secured the King's acceptance. In recognition of Bismarck's intercession, Bancroft remarked that everyone had taken "a large and liberal view of the case" (quoted in Handlin 1984, p. 279). Soon thereafter, the Grand Duchy of Baden, Bavaria, the Kingdom of Wurtemberg, and the Grand Duchy of Hesse all concluded similar bilateral treaties with the United States (Flournoy and Hudson 1929, 660-667). Additional bilateral treaties recognizing U.S. naturalization and limiting dual nationality were negotiated between the United States and Great Britain, Austria-Hungary, Belgium, Denmark, Norway, and Sweden during last few decades of the 19th Century (Bar-Yaacov 1961, 163-66). In total, the U.S. entered into 26 such bilateral agreements, which collectively became known as the Bancroft Treaties. Although most major sending states entered into agreements with the United States, some states continued to draft naturalized American citizens when they returned to their country of origin, as, for example, Italy and Switzerland did during World War I. The proliferation of bilateral treaties regarding nationality during the latter half of the 19th century accumulated into a set of norms against dual nationality in customary international law. The project of codifying customary international rules began in 1925 when the League of Nations began to prepare for an International Codification Conference. The continuing conflicts between states over their nationals during World War I helped raise the issue of the regulation of nationality to become the first of three areas under consideration, and the U.S. delegation put forward a draft convention with rules to minimize dual nationality (Harvard Law School 1929). The conference produced the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws.1 The Preamble stated, "it is in the interest of the international community to secure that all members should recognize that every person should have a nationality and should have one nationality only" (League of Nations 1930, preamble). Although the U.S. delegation was largely responsible for drafting the convention, the United States did not sign it because other states would not accept the principle that a married woman's nationality should not be governed by that of her husband (Gettys 1934). Continuing the project of codifying international customary law after Word War II, the United Nations' International Law Commission drafted a Convention relating to the Statelessness of Persons in 1954 It also produced an additional three protocols: one dealing with "Military Obligations in Certain Cases of Double Nationality" (League of Nations 1930a); one regulating "Statelessness" (League of Nations 1930b); and one dealing with a "Certain Case of Statelessness" (League of Nations 1930c). 159
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and a Convention on the Reduction of Statelessness in 1961. In the post World War II era, these treaties envisioned that states take on a duty to extend nationality to those who would otherwise be stateless: "All persons are entitled to possess one nationality, but one nationality only." (ILC 1954) For the most part, however, postwar international cooperation to reduce dual nationality by treaty moved from worldwide to regional efforts, most extensively in Europe. According to the Council of Europe's Convention on the Reduction of Cases of Multiple Nationality (Council of Europe 1963) a national of one participating state who gains the nationality of another should lose his or her previous nationality, and an individual with nationalities of two participating states should be able to renounce one state's nationality. France, Austria, Denmark, Germany, Italy, Norway, Luxembourg, Sweden, and the Netherlands ratified the Convention, while the United Kingdom, Ireland, and Spain agreed only to Chapter II of the Convention, titled "Military Obligations in Cases of Multiple Nationality." International norms against statelessness and dual nationality helped establish an international system of nation-states by delineating its parts in terms of population. Just as states conclude border treaties that delineate their jurisdiction geographically, states delineate their jurisdiction demographically. Just as multilateral boundary conventions provide international rules for delineating geographic borders, states have entered into multilateral conventions on statelessness and dual nationality in order both to legitimate their competencies over defined jurisdictions and to minimize conflicts. These multilateral efforts reduced the number of cases of statelessness and dual nationality and instituted a regime for the resolution of conflicts over the remaining cases. As long as the number of remaining cases that persist stays relatively small, conflicts of nationality law can be marginalized in relations among states, given that the consequences of statelessness and dual nationality are ultimately borne by individuals, whose interests can all too easily be disregarded should they conflict with the interests of the states concerned. Increased international migration places pressure on this demographic boundary maintenance regime of the state system, by increasing the number of people who find themselves caught between two states and suffering adverse consequences because of it. In conjunction with increasing migration, many states have recently relaxed their policies on renunciation of previous citizenship for resident aliens who naturalize as well as on automatic expatriation of their nationals who naturalize elsewhere. Such policy changes have undermined the international regime dedicated to reducing cases of dual nationality. The trend toward increasing toleration of dual nationality is enabled by international security factors such as post-war European integration, North Atlantic security structures, the end of the Cold War, and the decline of conscription (Koslowski 2000a). Increasing dual nationality, however, is primarily the result of domestic politics that have led to unilateral defections from the international demographic boundary maintenance regime. Perhaps the most important factor for increasing cases of dual nationality is the 160
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post-war rise of women's movements (Hammar 1985). In the development of nationality law in the 19th and early 20th centuries, states that followed the principle of jus sanguinis generally followed the additional practice of paterlineal ascription. That is, legitimate children received the father's nationality, illegitimate children received the mother's nationality. This practice reduced the number of dual nationals because the child of a marriage between nationals of two jus sanguinis states would then have the father's nationality and, if born out of wedlock, the mother's - but not both. Essentially, the pervasiveness of paterlineal ascription yielded an informal coordination game among states. Nevertheless, in response to widening women's suffrage and subsequent movements for equal treatment of women under the law, many states gradually abandoned paterlineal ascription in favor of gender equality in the transmission of nationality to children. The more states that ascribe their nationality to children of mixed marriages, regardless of the citizen parent's gender, the greater the possibilities that children of mixed marriages will be born with dual nationality. The increase in dual nationality in such circumstances is the unintentional outcome of declining informal international coordination of nationality laws. Another domestic political factor is primarily operative in migrant sending states such as Colombia, the Dominican Republic, Ecuador, Turkey, Italy, and Mexico, which recently began to permit emigrants to maintain their nationality after naturalizing to another state. Most of these sending states changed their policies in large measure due to the lobbying of emigrants who wish to retire or invest in the homeland and as a means of retaining emigrants' political identification. In many cases, sending states are permitting dual nationality among their emigrants in the hope that, as citizens of host countries, they might form stronger ethnic lobbies that can work to change host country foreign policies in favor of the home states' interests (Dillon 1996; Ozdemir 1996). Similarly, historic sending countries of Europe often maintained post-colonial ties by explicit agreements on dual nationality with former colonies or through more informal toleration of the practice. For example, in 1949 the United Kingdom changed its law to permit dual nationality, thereby permitting its nationals to gain the nationality of Canada, Australia, and New Zealand after these former colonies established their own citizenship laws (Goldstein and Piazza, 1996, 521). Between 1958 and 1969 Spain negotiated a series of bilateral agreements permitting dual nationality for nationals of Chile, Peru, Paraguay, Nicaragua, Guatemala, Bolivia, Ecuador, Costa Rica, Honduras, the Dominican Republic, and Argentina (Council of Europe 1997). New states emerging from the collapse of the Soviet Union and Yugoslavia also opted to permit dual nationality, if only as a possibility for emigrants and their descendants. As the Soviet Union collapsed, 25 million Russians found themselves outside of Russia. Russian politicians quickly championed the cause of Russians in the "near abroad" and insured that the new Russian citizenship law permitted dual nationality (Council of Europe 1997, 142). Members of the "Croatian nation" that do not reside in Croatia may acquire Croatian nationality without renouncing their 161
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existing nationality, and Slovenia permits dual nationality for Slovenians who naturalize elsewhere (Council of Europe 1997, 30, 151). Another domestic political factor is primarily operative in states experiencing net immigration, i.e., receiving or host states. Many receiving states have relaxed their prohibitions on dual nationality in order to facilitate political incorporation. In 1977, Canada changed its law to explicitly permit dual nationality for immigrants who naturalize as well as for Canadian nationals who naturalized elsewhere. Australia does not require renunciation of previous citizenship for those who naturalize, but Australians who naturalize elsewhere automatically lose their Australian nationality.2 The U.S. government officially discourages dual nationality but permits it in practice because it is restrained by Supreme Court decisions striking down involuntary expatriation as a violation of the 14th Amendment. Also, naturalized Americans routinely keep their previous nationalities and passports because the renunciation clause of the oath of allegiance is not strictly enforced (Goldstein and Piazza 1996, Spiro 1997). Switzerland stopped requiring renunciation of previous nationality of those who naturalize in 1990 (OECD 1995, 163, 165), and the Netherlands changed its policies in 1991 so as to permit those who naturalize to retain their previous nationalities in certain circumstances (Council of Europe 1996, 22). Because France requires renunciation only by naturalization applicants from states who have signed the 1963 Convention (a group that forms a small fraction of the French immigrant population), well over a million naturalized French citizens maintain dual nationality (Hammar 1990, 111). Germany has tolerated dual nationality among ethnic Germans from Eastern Europe and Russia, children of mixed marriages, and draft age foreigners, if the home country requires military service in order to be released from its nationality. Already in 1995, Cornelia Schmalz-Jacobsen, the former Federal Government's Commissioner for Foreigners' Affairs, estimated that there were over two million German citizens with dual nationality (TWIG 1995). As of January 1, 2000, dual nationality is permitted for children born in Germany of foreign parents, but they must choose between German nationality and their other nationality by the time they become 23 years old. States have also enacted polices that have indirectly led to increased dual nationality through increasing the economic value of their nationality and thereby instilling a reluctance among emigrants to give it up (and/or encouraging immigrants to take on a second nationality). Philip Martin has argued that there would be less incentive for people to acquire two nationalities if states did not discriminate in favor of nationals by limiting property and inheritance rights of non-nationals.3 For example, until recently, Turkish emigrants who naturalized in Germany lost inheritance and rural property rights in Turkey. Similarly, Mexico does not permit foreigners (including Mexicans who have renounced their nationality) to own land within 100 kilometers of its border and 50 kilometers of the coast. Due to such laws, emigrants who In February 2000, the Australian Citizenship Council released its report, which strongly recommended repeal of this provision of Australia's citizenship law. Comments made at Managing Dual Nationality, Mexico City, February 2000.
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hope (however unrealistically) that they will someday return home to retire are very reluctant to give up these property rights along with their nationality. Hence, if dual nationality is discouraged by either the sending or receiving states involved but nevertheless possible, many such migrants will pursue the dual nationality option rather than simply naturalizing and giving up their first nationality and the property rights that go with it. Similarly, by limiting property rights or other economic benefits to nationals, receiving countries may encourage naturalization. For example, the expansion of migrants' civil and social rights in the states in which they reside led some scholars to speak of the "devaluation of citizenship," given that the possession of a state's nationality is no longer necessary to enjoy many of the rights of citizenship (Schuck 1989). In the United States, however, the 1996 welfare reform denied benefits to legal permanent residents and therefore led to a revaluation of citizenship (Schuck 1998), which subsequently spurred record-setting naturalization rates. If a migrant's home country retains property rights laws that encourage retention of nationality while his or her host country enacts laws that encourage naturalization by limiting economic benefits, dual nationality can become the migrant's most rational economic choice, which, ironically, is imposed conjointly by the states to which he or she belongs. Although international norms intended to decrease cases of dual nationality had been most fully developed within the Council of Europe, by the beginning of the 1990s it became clear that increasing migration had put them under significant pressure (Hailbronner 1992, 92-98). Changing nationality laws, evasive treaty interpretations, and contradictory administrative practices on the part of European states undermined these norms and have led to the deterioration of Europe's demographic boundary maintenance regime (for elaboration, see Koslowski 1998; 2000, ch. 7). In 1997, the Council of Europe's Committee of Ministers adopted a new European Convention on Nationality that allows states to permit dual nationality or not to permit it, require renunciation or not require it.4 Nevertheless, the new convention does not abrogate treaty commitments made in 1963 (Council of Europe 1997b), and most signatory states retain prohibitions against dual nationality in their nationality laws. Most EU Member States still required renunciation of first nationality by naturalization applicants in November 1997 when the European Convention on Nationality was signed (Netherlands changed its policy back to requiring renunciation on October 1, 19975). As Germany relaxes its renunciation requirements, however, whatever is left of the international norm against dual nationality in Europe becomes a somewhat moot point as an overwhelming majority of Europe's population of resident aliens will become able to maintain a second nationality.
Council of Europe 1997a. As of October 1, 2000, 21 member states have signed the Convention and three have ratified it. The Convention went into force March 1, 2000. See Council of Europe, European Treaties, Chart of Signatures and Ratifications, http://conventions.coe.int/treaty/EN/cadreprincipal.htm. Dual nationality would be permitted in only a very limited number of cases (Muus 1998). 163
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II. THE LIMITS OF UNILATERAL ACTION AGAINST DUAL NATIONALITY The decline of such international cooperation produces increasing numbers of dual nationals, and unilateral measures by individual states are unlikely to halt this trend. Some commentators and policy makers in receiving states may view dual nationality as an abomination of dual loyalty (much as George Bancroft did), but their efforts to legislate dual nationality out of existence may come to naught. Just as it took international cooperation between the migrant-receiving United States and the migrant-sending North German Confederation to reduce dual nationality among German immigrants to the United States, if the U.S. government would again attempt to limit dual nationality among its naturalized citizens, it would need the cooperation of Mexico and other sending states. Mexicans who naturalize in the United States and elsewhere may now keep their Mexican nationality, and naturalized Americans may reclaim their Mexican nationality. Though new American citizens swear to "renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty" at their naturalization ceremony, renunciation is not enforced as a requirement of naturalization. Raising the specter of multiple loyalties, editorialists and immigration reform advocates argue that naturalized American citizens should relinquish their first nationality and hand over their foreign passports (see, e.g., Geyer 1996). This get-tough policy will not necessarily reduce the number of dual nationals, however, as recent German experience demonstrates. Germany has required renunciation of previous nationality in order to naturalize. Still, growing numbers of naturalized Germans became dual nationals, especially those from Germany's largest migrant community - its two million Turkish nationals. Germany's renunciation policy includes loopholes permitting dual nationality for foreigners whose country of origin arbitrarily refuses release of previous nationality or, in the case of draft age foreigners who received the majority of their schooling in Germany, if the home country requires military service in order to be released from its nationality. These loopholes meant that dual nationality was tolerated in 13,082 of 29,108 discretionary naturalizations (44.9 percent) in 1993 (Auslaenderbeauftragte 1997, 33). Moreover, after years of urging Germany to permit dual nationality, Turkey changed its laws in 1995 to permit emigrants who renounce their nationality for purposes of naturalization to reapply for Turkish nationality shortly thereafter (see Rumpf 2002).6 Given that dual nationality was tolerated for over a third of the Turks who naturalized in 1995 (Auslaenderbeauftragte 1997, 32), and that those who did renounce their Turkish nationality were permitted to get it back, it is fair to say that a majority of the Turks who naturalized in 1995 most likely now have both German and Turkish nationality. Even if the U.S. followed Germany's example and strictly enforced the renunciation See also the Turkish Embassy webpage, consular information http://turkey.org/cons3e.htm. 164
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oath, it would not necessarily reduce the number of dual nationals. Since Mexico now permits those who previously renounced their nationality to reclaim it, Mexico, like Turkey, could simply provide evidence of renunciation to naturalization applicants, then restore Mexican nationality to the newly naturalized Americans and issue new passports to them. It is Mexico's sovereign right to permit its nationals to keep their Mexican nationality after they naturalize elsewhere - much as it is the United States' right to permit Americans who acquire another nationality to maintain U.S. nationality. The U.S. government officially "discourages" dual nationality but permits it in practice because it is restrained by Supreme Court decisions interpreting the 14th Amendment. Americans may lose their nationality only if they voluntarily obtain another nationality with the specific intention of relinquishing U.S. nationality. Simply taking a pro forma oath of allegiance to another state does not constitute intent - nor, for that matter, does voting or military service. Americans often get a second nationality for easier travel on another passport and to gain access to business, investment, and employment opportunities for which citizenship is required. For example, a student of mine with an Irish-born grandparent obtained Irish nationality and European Union citizenship. This enabled him to take a job in Austria. By expatriating all those who take on another nationality, in principle the U.S. government could stop naturalized Americans from becoming dual nationals by reclaiming their Mexican nationality. But because involuntary expatriation has been held to violate the 14th Amendment, such a policy would run into constitutional difficulties. Moreover, such a policy would entail expatriating not only Mexicans who had naturalized to the United States, but also all naturalized Americans who have reclaimed their previous nationality and, if the policy were not to discriminate between native-born and naturalized citizens, native-born Americans who have acquired a second nationality - such as my Irish-American student and the many other native-born Americans who have used dual nationality to further their careers and businesses. Hence, congressional proposals for expatriating all Americans who get a second nationality would most likely run afoul of several politically powerful constituencies. Expatriation legislation that applies only to naturalized Americans could easily be cast as a form of discrimination against immigrants in general and most likely become a political rallying point for ethnic groups and civil libertarians alike. In a period marked by both Democratic and Republican parties appealing for the Hispanic vote, such legislation is not very viable. Of course, the INS could seek to revoke the citizenship of a naturalized U.S. citizen who reacquires Mexican nationality by contending that his or her oath of allegiance was fraudulent because he or she intended to reacquire Mexican nationality. It would be difficult to make this argument for Mexicans who naturalized to the United States before Mexico changed its constitution in 1996 to permit them to reacquire Mexican nationality. For that matter, it would be difficult to make this argument for those who applied for U.S. citizenship before the new Mexican law 165
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went into effect. Moreover, it would seem awkward (if not inconsistent) to revoke the U.S. citizenship of someone who acquires Mexican nationality but allow that same person to keep U.S. citizenship if he or she were to acquire any other nationality (e.g., Irish nationality by virtue of having an Irish-born grandparent or Belizian nationality through an economic citizenship program). Finally, this policy would be difficult to execute without the cooperation of the Mexican government, as the following analysis of German efforts to enact such a policy demonstrates. While some U.S. immigration reform advocates have viewed Germany's ostensibly strict policies against dual nationality as a model to emulate, Germany has loosened its renunciation requirement by adopting additional grounds for tolerating dual nationality in the new Nationality Law that went into effect in 2000. The German government has also responded to the 1995 Turkish law that permitted reacquisition of Turkish nationality by changing expatriation rules in the new Nationality Law. Before 2000, involuntary expatriation of a German citizen residing in Germany was not permitted. Now, a German national who wishes to retain his or her nationality after naturalizing elsewhere can apply for a certificate permitting dual nationality, which is generally granted if the applicant can provide proof of continuing ties with Germany.7 Nevertheless, application for such a certificate provides a degree of administrative discretion available to address the dilemma posed by states (such as Turkey and Mexico) that allow their citizens who naturalize in Germany to regain their original nationality. That is, native-born Germans who naturalize elsewhere (e.g., to the United States) may be able to keep their German nationality, while According to Section 25 of the Nationality Act, "(1) A German shall lose his citizenship upon the acquisition of a foreign citizenship where such acquisition results from his application or from the application of the husband or of the legal representative. The wife and the person represented however shall only suffer such loss where the requirements are met which under section 19 permit the making of an application for release. (2) Citizenship shall not be lost by any person who before acquisition of the foreign citizenship has received upon his application the written approval of the competent authority of his state of origin for retention of his citizenship. Before the granting of the approval the German consul shall be heard. In taking the decision pursuant to the first sentence there shall be a weighing of the public and private interests. In the case of an applicant normally resident abroad special consideration shall be given to whether he can show convincing proof of continuing ties with Germany." This act has been interpreted in the following way in a publication produced by the German Embassy in Washington: "Already under the previous citizenship and naturalization laws, it was possible to retain German citizenship, provided strict requirements were met. However, in the interest of avoiding dual citizenship, the provision was interpreted very narrowly. The new provision largely does away with the former strict criteria, thus making it considerably easier for Germans to retain their German citizenship. The main requirement is that applicants must be able to credibly show that they still have continuing ties to Germany. This could consist of ongoing relationships to close relatives living in Germany, existing ownership of real estate in Germany, or pension or insurance claims. Furthermore, a pledge of allegiance (as is required in the U.S. for naturalization) shall in future no longer stand in the way of issuing a certificate approving retention of German citizenship if the foreign country has a governmental and social order comparable to that of the Federal Republic of Germany. This applies in particular to Germans living in the United States who wish to acquire U.S. citizenship." http://www.germany-info.org/newcontent/np/np_3c_l.html.
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naturalized Germans who wish to regain their former Turkish nationality might not be given the certificate necessary to keep their German nationality. In theory, this provision should be able to counter certain sending country policies aimed at facilitating dual nationality among their nationals who naturalize to Germany. However, unequal treatment of native and naturalized citizens may violate Article 5 of the 1997 Council of Europe Nationality Convention (which the present German government seems inclined to sign).8 More importantly, it would be very difficult for German authorities to find out whether or not a naturalized German had in fact reacquired Turkish nationality if Turkish authorities did not inform them. It would make little sense for the Turkish government to furnish this information, because the provision for reacquisition of Turkish nationality was (at least partially) intended to facilitate emigrant naturalization in their host countries. In effect, German efforts to limit dual nationality among Turkish nationals who naturalize to Germany would require significant cooperation from the Turkish government. Without Turkish cooperation, it is unlikely that the German government's efforts to expatriate naturalized Germans will significantly reduce the number of German-Turkish dual nationals. Moreover, Germany's new Nationality Law has expanded the grounds for "difficult conditions" under which those naturalizing to Germany will not be required to give up their first nationality. These new loopholes apply to older persons for which renunciation would present particular hardships, to those for whom giving up their first nationality would bring considerable disadvantages, particularly of an economic or financial kind, and those suffering political persecution.9 In light of these exceptions, sending states that wished to promote their emigants' naturalization to Germany could, hypothetically, change their laws and policies (e.g., by placing a tax on those who renounce their nationality in order to recoup schooling costs) so that their emigrants could fall under one of these hardship categories. The point here is that the practical effect of receiving state policies toward dual nationality depends very much on the policies of sending states. Generally speaking, if states are not also willing to expatriate their own nationals who gain another nationality, simply requiring those who naturalize to renounce their former nationality will not necessarily reduce the number of dual nationals. Expatriation, however, may be politically, if not constitutionally, difficult for democratic countries to enforce. Even if such expatriation provisions are legally tenable and even if their enabling legislation is politically feasible, their execution may not be administratively possible. Hence, despite the desires of some commentators and policymakers, the number of dual nationals, worldwide, will most likely increase in the future.
Section 2 states, "Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently." For elaboration on this point see de Groot, 2000. Aliens Act, Section 87, 1.
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III. POLICY CHALLENGES If international norms against dual nationality are eroding and unilateral efforts to restrict dual nationality are not feasible, what are the specific policy challenges of a world of increasing dual nationality? What are the implications for international cooperation? A. Multiple Military Obligations The most immediately apparent issue is in the area of international security increasing cases of dual nationality mean overlapping pools for state conscription of military manpower. The problem of multiple military obligations is, to a certain extent, relieved by the decline of war between states (especially among established democracies), the development of security communities, and the trend toward professional armies in advanced industrialized countries (Koslowski 2000a). Nevertheless, as norms against dual nationality decline and the number of dual nationals increases, old problems of multiple military obligations have resurfaced. For example, in 1995 several young men from the Opole region of southwestern Poland responded to their draft notices with documentation that they had served in Germany's Bundeswehr. Because it is against Polish law for Polish citizens to serve in another military without Poland's permission, the case was referred to the Opole prosecutor's office. The prosecutor and the regional military authorities dropped the case, indicating that the harm done was minor. According to the German Consul in Wroclaw, in mid-1995 there were approximately 60,000 Polish nationals in the Opole region who also had German nationality (PAP 1995). Polish military authorities do not have data on how many of these Polish-German dual nationals actually served in the Bundeswehr, but Polish officers have speculated that it may be many because the Opole region had Poland's lowest percentage of recruits reporting for duty and the highest rate of proceedings against draft dodgers (Gazeta Wyborcza 1995). As such cases have persisted and increased, Polish authorities have not accepted previous military service in Germany as an excuse from the Polish draft.10 Although the new Polish citizenship law enables the restoration of citizenship to Poles who served in the U.S., French, and British armies after World War II, enlisting in a foreign army today is treated as a crime (Szymborski 2000). In addition to multiple military obligations, dual nationals may be subject to other sanctions by one of the states to which they belong because of military service to the other. The growing phenomenon of civil wars in the homelands of emigrants compounds the complexities of such situations. For example, during the Kosovo War, Canadian citizens who had immigrated from Albania or Kosovo (or who descended from Albanian immigrants) went to Kosovo to fight the Yugoslav Army. This point was made by Mahulena Hoffman at the German Marshall Fund Project on Dual Nationality meeting in Istanbul, October 20-21, 2000.
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At the time, the Royal Canadian Mounted Police considered prosecuting these Canadian citizens under the Foreign Enlistment Act (see Thompson 1999). Similar concerns were raised about Serbian-Canadians. According to the Foreign Enlistment Act it is a crime for a Canadian citizen to enlist or accept any commission to fight in the armed forces of any foreign state at war with Canada or one of its allies. Given that Canadian forces entering Kosovo would be exposed to potential hostilities with Serbian troops or be involved in the forceful disarming of the Kosovo Liberation Army (KLA), Canadian citizens who volunteered to serve on either the Serbian or Kosovar side of the conflict not only possibly violated Canadian law but also potentially faced combat with their fellow citizens. The Royal Canadian Mounted Police eventually decided not prosecute Canadian citizens who enlisted in the KLA and fought in the Yugoslav Army, but Canadian citizens who committed atrocities would still be subject to charges brought by war crimes tribunals (National Post 1999). While the decline of war between states and of conscription by states has reduced the problem of multiple military obligations, the number of wars within states has been increasing (e.g., the break-up of Yugoslavia), which raises analogous problems regarding military service. These civil wars often coincide with the democratization and self-determination which had been unleashed by the end of the Cold War (Mansfield and Snyder 1995), meaning that democracy is not a simple answer to the scourge of war and that the process of democratization may be much more violent and longer than many had hoped in the early 1990s. Civil wars are not only struggles for the hearts and minds of the residents of a country but they also might involve both sides attempting to draft residents into service. For example, there were many young men in Bosnia-Herzegovina of mixed parentage (Croatian mother and Bosnian Muslim father; Serb mother and Croatian father, etc.). When the war broke out, the Serb, Bosnian Muslim, and Croat militias that formed attempted to conscript such young men into service. Many fled the country and received temporary protection in Germany and other EU member states. Of course, there is also the issue of multiple military obligations in the context of a successful movement of self-determination, as for example when Slovenia and Croatia initially seceded from the Yugoslav federation. Until Yugoslavia recognized Slovenia and Croatia as states, those Croatian and Slovenian soldiers who were members of the Yugoslav Army before Slovenia and Croatia declared independence may have been subject to military obligations to both the seceding state and Yugoslavia. Indeed, it was this kind of problem - when Great Britain did not recognize U.S. naturalizations after the American Revolution - that precipitated the War of 1812. States could set up frameworks for international cooperation in order to head off potential conflicts between states over cases of multiple military obligations. Increasing international cooperation is evident, for example, in the detailed provisions of Chapter VII of the 1997 European Convention on Nationality (Council of Europe 1997b). They stipulate that individuals need to fulfill military obligations of only one 169
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state party, provide rules for determining to which state military obligations are owed (Art. 21), and give guidance on exemptions from military service or alternate civil service (Art 22). What is particularly significant about the 1997 Convention is that the scope of participation has widened with the expansion of the Council of Europe, and the Convention is even open to signature by non-members. Albania, Bulgaria, the Czech Republic, Hungary, Moldova, Poland, Romania, Russia, Slovakia, and the former Yugoslav Republic of Macedonia have already signed the Convention, in addition to several West European states. Former adversaries from opposite sides of the Iron Curtain have agreed to rules governing a major expression of political loyalty, formerly a prime site of the ideological conflicts of the Cold War. Interestingly, the Council of Europe Convention on Nationality is also open to non-member states that participated in its elaboration. Should the United States, Canada, and other non-European states also sign and ratify this convention together with their European partners, not only would it reinforce the notion that the post-Cold War world is indeed becoming a safer place, but it would also be a stride toward establishing an international regime that could make the world a bit safer for dual nationals. Ultimately, however, the specter of widespread cases of multiple military obligations could reemerge if increasing international tensions prompt more states to reinstate conscription. It would be for such a contingency that international cooperation on rules governing multiple military obligations in cases of dual nationality could potentially play a more significant role in the continuation of peaceful international relations. While such an international regime could play a role in preempting and reducing conflicts between states, in a world in which violent conflicts are increasingly taking place within states, rather than between them, such traditional state-to-state international cooperation may not be sufficient for addressing presentday realities of conscription. New modalities of global governance that include subnational political authorities and non-state actors may be necessary to address the problems of multiple military obligations adequately in the future. B. Economic Globalization A more lenient regime permitting dual nationality may also have a significant impact on the globalization of the world economy. Changing international norms and state practices facilitate the development of a global economic elite, some of whom obtain second nationalities in order to avoid taxes, conceal international movement, and ease travel. Individuals often view dual nationality in utilitarian terms of having a second passport for gaining access to business and employment opportunities for which citizenship is required. Several states offer "economic citizenship" programs (routinely advertised in business magazines like the Economist) to those who are in the market
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for a second passport. For example, Dominica sells its citizenship for a cash contribution of $50,000.11 In one year, Dominica sold 68 passports for $3.5 million - half to Russians or nationals of other Soviet successor states, over twenty to Chinese and Taiwanese, and about a dozen to Americans (Fineman 1997). Wealthy Russians maintain that they do not want immigration officials to know about their international movements and investments because such information is sold by corrupt officials to criminals who use it for extortion. Taiwanese and Chinese dual nationals use their second passports to circumvent strict visa requirements in the West (for example, the United Kingdom and Canada require no visas for bearers of Dominican passports12). Americans primarily use their Dominican nationality to reduce or avoid taxes (see Fineman 1997). St. Kitts and Nevis,13 the Cape Verde Islands, Grenada,14 and Belize15 offer similar programs, while Ireland and Portugal have offered investment-linked citizenship programs in the past (O'Nes 1990; Starchild 1993). Some states do not sell their citizenship outright, but do provide something similar. Countries such as Panama, Paraguay, and the Dominican Republic offer residency programs that provide permanent resident status with the option to naturalize without full-time residence.16 Second nationalities have been used to foil efforts of the U.S. Internal Revenue Service (IRS) to tax the earnings of U.S. nationals living abroad. The United States is one of the few countries that taxes income of its citizens earned abroad. Since U.S. nationals who renew their passports at U.S. embassies must provide their social security numbers, the IRS often takes this opportunity to check the tax status of expatriates who are suspected of tax evasion. Americans living abroad have countered this tactic by not renewing their passports and traveling on passports acquired through economic citizenship programs (Gallo 1999). If they wish to return to the United States (and acquire a U.S. passport), second passports from Dominica, Grenada, St. Kitts and Nevis permit visa-free travel to Canada,17 from which it is relatively easy to cross into the United States with a U.S. driver's license. In an effort to evade taxes, some rich Americans have resorted to renouncing their U.S. citizenship altogether (even though in some circumstances the government still imposes taxes on its former citizens18), and additional citizenships become particularly useful to execute this tax evasion strategy. David Lesperance, Barrister & For details on Dominica's Economic Citizenship Programme, see http://caribcats.com/citizenship.htm. See Dominca's Economic Citizenship program at: http://caribcats.com/citizenship.htm; U.K.'s list of countries that require visas at: http://www.homeoffice.gov.uk/ind/to_the_uk/to_the_uk_ visa.html#VisaNationals; Canada's list of countries that do not require visas at: http://www.cic.gc.ca/ english/visit/visas_e.html#exemptions. See http://www.stkittsnevis.net/invest/citizenship.html. See http://www.escapeartist.com/Grenadanian_Second_Passport/overview.html. See http://www.beltraide.belizeinvest.org.bz/act_citizens.html. See, e.g., http://www.secondresidency.com and http://www.escapeartist.com/efam9/Dominican_ Residency.html. See "visitor visa exemptions," http://www.cic.gc.ca/english/visit/visas_e.html#exemptions. See http://www.irs.ustreas.gov/prod/forms_pubs/instruct/i8854.html. 171
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Solicitor (as well as former U.K. immigration official) has advocated that individuals establish a "passport portfolio" much as they would a portfolio of investments (Lesperance 1999). Lesperance offers an example of a wealthy American citizen, "William Goates III," who, by acquiring the citizenship of Grenada and permanent residency in Canada, could eventually become a dual national of Grenada and Canada within three years of acquiring Canadian residency and then renounce U.S. citizenship. He could then not only evade U.S. taxes19 but also circumvent high Canadian taxes. Canada does not impose income and capital gains tax on nonCanadian source income and capital-gain-producing assets, and he could use his Grenadan identity documents when opening bank accounts and making investments. Although not economic citizenship programs per se, some states, such as Canada, Australia, New Zealand and the United States, have investor immigrant programs that provide permanent resident status, which enables one to naturalize after a given period of residence. The United States offers up to 10,000 immigrant visas per year to people who invest $1,000,000 in a commercial enterprise that creates employment for at least ten unrelated persons in the United States or invest $500,000 in rural or high unemployment areas.20 After applicants demonstrate to the INS that their business is not fraudulent, they receive permanent resident status and may naturalize to the United States after five years residence. Despite precautions, abuses of the program occurred after a ruling that permitted visa applicants to meet investment requirements with only a portion of the money in cash and the rest on a promissory note or allowed applicants to pool their money in limited partnerships. Certain companies (including some with former high-ranked INS officials) took advantage of these rulings to secure green cards for clients with investments of as little as $125,000 (Roche and Cohen 2000). Canada has a similar investor immigrant program. It requires that investors provide a minimum investment of $400,000 and have a minimum net worth of $800,000.21 After living for three years in Canada as a permanent resident, the investor immigrant may apply for Canadian citizenship. Australia has an investment-based immigration program that requires an investment of at least 750,000 Australian dollars.22 New Zealand incorporates investment as a criterion for its point-based immigration policy. An investment of 1 million New Zealand dollars earns 1 point, as does every $500,000 thereafter.23 Since Canada, Australia, and New Zealand do not require renunciation of nationality to naturalize and the United States does not enforce the renunciation in the oath of allegiance, the end effect - Canadian, Australian, New Zealand, or U.S. nationality in addition to the investor's original nationality - is the same as economic citizenship programs. He would still be subject to taxation for ten years after renunciation. See http://www.irs.ustreas.gov/ prod/forms_pubs/instruct/i8 8 54.html. See http://travel.state.gov/visaiimmigrants.html; Roche and Cohn 2000. See http://www.cic.gc.ca/english/immigr/ibusiness-e.html. See http://www.immi.gov.au/allforms/bus-inv.htm. See http://www.immigration.govt.nz/migration/.
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The Canadian, Australian, New Zealand, and U.S. programs only cost much more and take longer to acquire the second nationality. Although most European Union member states have not viewed themselves as immigration countries and have not adopted similar investor programs, the United Kingdom has a long-standing investor visa program. The investor must bring 1 million pounds in assets to the UK and make a 750,000 pound investment in the British economy, which then yields the possibility of permanent residence after four years.24 The German government has established an all-party commission to consider the development of an immigration policy. Leaders within the opposition CDU, such as Friedrich Merz, are now arguing for reforms that would "move the focus of our policy away from those who need us to those whom we need" (quoted in Economist 2000). A prominent economist in Germany, Thomas Straubhaar (2000), has argued for a "New European Migration Policy" (NEMP) that would be modeled after the Canadian point system and could include the auctioning of permanent residence permits. States not only offer citizenship or permanent residency for an investment of financial capital, but some states also offer citizenship or permanent residency in order to attract human capital. For example, many European states bestow a second nationality on star athletes, particularly football players, and often so that they could play as members of national teams.25 To fuel the information revolution propelling the growth of their economies, the United States, the United Kingdom, and Germany have established special work visa programs to attract highly skilled computer programmers and other information technology professionals. Although these are ostensibly temporary worker programs, many high-tech migrant workers, for example in the United States, apply for and receive permanent resident status which, in turn, makes them eligible for citizenship in five years. The point here is that the exchange of "citizenship" for capital can take a variety of forms, located along a continuum between immediate citizenship after providing an investment of as little as $50,000 to citizenship after years of providing one's knowledge and skills (often at below market value) and applying for temporary residency, permanent residency and citizenship itself. With economic citizenship programs, states, no matter how small or large, are utilizing their sovereignty to raise revenues or attract investments. Some small states use their sovereignty to produce passports for people who have no intention of giving up their original nationality, much as they generate relatively large revenue streams by producing very attractive postage stamps that are never attached to an envelope but are rather sold directly to stamp collectors. Selling a wide array of postage stamps became increasingly popular among island micro-states as growth in official development assistance to developing countries stagnated in the 1980s and See http://www.homeoffice.gov.uk/ind/to_the_uk/to_the_uk_2.html. This point was made by Gererd-Rene de Groot at the German Marshall Fund Project on Dual Nationality meeting in Istanbul, October 20-21, 2000.
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declined after the end of the Cold War. Passing bank secrecy laws and selling passports can be viewed as other revenue-generating opportunities for resource-poor micro-states that have little to trade with the rest of the world but wish to acquire the hard currency necessary to purchase the foreign goods increasingly desired by their citizens, who have been exposed to advertising via the global media. In essence, sovereignty becomes fungible as states turn citizenship into a commodity. Sovereignty, however, denotes not only the state's supreme law-making and lawenforcing authority in a given territory, but also that such authority is recognized by the other states of the international system (Claude 1966). The question arises as to whether the commodification of citizenship is an acceptable practice among the members of international society. If the practice were limited to only marginal members within the system, those states that adopt this practice could be diplomatically sanctioned. Given that hegemonic states within the system have dabbled in the practice of selling permanent residence permits, however, the direction of the development of international norms in this area may be in the other direction. Given such commodification of citizenship, easing policies on dual nationality may accelerate the international movement of capitalists and high skilled labor as well as facilitate the expansion of offshore banking for personal assets. As nationalities of convenience are combined with the increasing ability to move money electronically and anonymously with the development of e-cash, even the most sophisticated states will confront increasing obstacles to effective tax collection (Korbin 1997). The OECD (2000) has identified as tax havens many of the same states that offer economic citizenship programs, such as Belize, Dominica, Grenada, and St. Kitts and Nevis. The commodification of citizenship combined with increased mobility (both of individuals and their capital) may facilitate the development of a global economic elite that is as multinational as the firms for which they work (or that they own). If wealthy business people, however, can use dual nationality to conceal their international movements, hide their assets from tax authorities, and elude border controls, so can those who engage in terrorism and illegal economic activities like drug smuggling, money laundering, and human smuggling. The growth of transnational crime is keeping pace with economic globalization, and transnational criminal organizations are becoming increasingly sophisticated. Wealthy Russians who purchased Dominican passports claim to be doing so in order to hide their comings and goings from corrupt immigration officials on the take of extortionists. Officials administering Dominica's economic citizenship program, however, admit that they cannot guarantee that all of their Russian customers are not members of criminal organizations who are in fact trying to hide their movements from the Russian police (see Fineman 1997). Moreover, persons indicted for crimes may also use the nationality of states that do not permit extradition of their nationals in order to find a haven to gain a more advantageous venue for prosecution, to face lighter penalties and better prison conditions, or to avoid prosecution altogether. For example, many states do not 174
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permit extradition of their citizens who have committed a crime abroad and many of these states also permit dual nationality, including the Dominican Republic, France, Israel, and Russia. Indeed, the controversy over Samuel Sheinbein, a Maryland teenager with dual U.S.-Israeli nationality who fled to Israel while being accused of murder, brought Israeli extradition policy to the center of U.S.-Israeli relations, including a threat by former Rep. Robert Livingston, Chair of the House Appropriations Committee, to "revisit" the foreign aid budgeted for Israel (Newsday 1997). Given that dual nationality is often the result of states exercising their sovereignty to extend their nationality to whom they wish and to claim jurisdiction over their nationals, the use of dual nationality by individuals to evade the laws of states is an example of how individuals are using the rules generated by the doctrine of state sovereignty against states themselves (see Kerry 1997, pp. 169-170). Moreover, loosening prohibitions against dual nationality will place increasing pressure on furthering international cooperation in extradition and international sharing of information on the movements of capital and people. Such actions are often regarded as infringements on sovereignty, but they may become increasingly acceptable to states if framed in terms of battling transnational crime. States are beginning to cooperate to reduce tax evasion. The OECD has published a list of states that it identifies as tax havens that practice "harmful tax competition" (OECD 2000), with the expectation that greater transparency will put pressure on tax havens to change their ways. To a certain extent it has. In anticipation of the OECD report, Bermuda, Cayman Islands, Cyprus, Malta, Mauritius, and San Marino made commitments to eliminate harmful tax practices by the end of 2005. In response, the OECD did not include their names in the report, even though they currently qualify as tax havens according to OECD standards (OECD 2000).26 If the richer and more powerful states of the world deem economic citizenship programs as enough of a nuisance, they could prod international organizations, such as the OECD, to publish similar lists and attempt to put pressure on states that utilize their sovereignty to sell citizenship. A degree of "citizenship harmonization" has already taken place within the EU (see Koslowski 2000: 167-69). Spain has dual nationality agreements with most Latin American states. Nationals from these states do not need visas to enter Spain, and they have been able to gain access to the EU labor market via special accelerated naturalization provisions in Spain. Nationals of Portuguese-speaking countries and individuals of Portuguese descent can be exempted from Portugal's residency requirements for naturalization, and those who do not have the requisite ancestry had been able to accelerate naturalization by virtue of purchasing property. Fellow EU member states have already pressured Portugal to curtail easy naturalization of foreigners who purchase property, and Spain has been under pressure to stop preferential treatment of Latin Americans since the immigration of members of Colombian drug See also http://www.oecd.org/daf/fa/harm_tax/harmtax.htm#Report. 175
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cartels. In his argument for a common European migration policy, Straubhaar notes this problem with individual member states taking a utilitarian approach to naturalization. [A]n EU member state could 'sell' its national citizenship. The problem, however, is that according to the EC Treaty Art. 8 citizenship of the Union is granted along with national citizenship. This involves rights which other EU-member states might not wish to grant so easily to persons from third countries. It is to be expected that a number of EU member states would put up resistance to the - from their point of view - too thoughtless granting of Union citizenship by other EU-member states, particularly when Union citizenship involves an increasing number of rights (Straubhaar 2000, 7). European Union citizenship also increases the value of member state nationalities by, for example, giving member state nationals the right to work anywhere in the EU. For example, the prospect of such access to the European labor market propelled the proposals to end Australia's policy of expatriating its nationals who naturalized or acquired another nationality. Many Australians thought that it was unfair that Americans who naturalized to Australia could become dual nationals and enjoy its advantages while Australians of Irish descent who were eligible to acquire a second, Irish nationality could not. In this way, EU citizenship has made dual nationality with an EU member state more desirable, much in the way that exclusive property rights have in states such as Mexico. In this case, however, the policy prescription offered by Philip Martin, as described above, of eliminating differential treatment of non-nationals would involve not simply lifting prohibitions on property ownership but opening labor markets of fellow member states to non-nationals. This is a policy proposal that is not very viable politically - especially in periods of high unemployment. While global efforts to stamp out the sale of citizenship may seem feasible in theory, it may be difficult for developed states that have perhaps the most to lose from such abuse of dual nationality to sanction developing states that offer economic citizenship programs. Given the U.S., Canadian, Australian, and British investor visa programs and the widespread practice of granting citizenship to star athletes and residency to computer programmers (often coming from less developed states that had provided their training and education), any initiative by large advanced industrial states of the north directed at economic citizenship programs of smaller developing states would mostly likely be viewed by a majority of the members of the United Nations as being somewhat hypocritical. An analogy can be drawn from the politics of the nuclear non-proliferation treaty (NPT). Aspiring nuclear powers view the NPT very differently than the long established nuclear powers that occupy the five permanent seats of the Security Council. Just as India and Pakistan had refused to sign the NPT if the U.S. and Russia would not commit themselves to nuclear disarmament and slash their existing nuclear arsenals, so developing states may be reluctant to sign an international agreement that would limit their ability to raise 176
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Cooperation
revenues if the U.S. and Canada would not also be willing to give up their investor resident visa programs. Given all of the problems associated with the U.S. investor resident visa program, the United States may be prepared to abandon it27 and thereby become eligible to lead international efforts to curb economic citizenship programs. Even if the United States were to give up investor-based residency programs, however, it would first have to convince its Canadian, Australian, and British partners within the G-8, OECD, U.N., etc. to do likewise in order for it to mount an effective campaign against economic citizenship programs. Less ambitious than international cooperation aimed at limiting dual nationality through the elimination of economic citizenship programs, another approach would be for states that offer such programs to share information about their nationals with dual nationality so as to reduce the possibility that individuals could use their second nationality to evade taxes or law enforcement. For some investors this would eliminate the appeal of these programs and, thereby, reduce dual nationality anyway. Nevertheless, it would be a way to ameliorate some of the most egregious abuses and leave economic citizenship programs intact for investors who are not acquiring a second nationality in order to circumvent the taxes or laws of the country of their first nationality. Likewise, states could agree on a multilateral basis to a set of rules for determining, given a certain set of circumstances, which state's law would be applicable to dual nationals. Such a regime could take economic citizenship programs and investor resident visa programs into account and provide frameworks for cooperation on the mutually agreed-upon taxation of dual nationals. Since this approach would not sanction states in the developing world for continuing to offer economic citizenship programs, there would be less of a necessity for developed states to give up their investor-based residency programs in order to campaign against abuses of citizenship laws in international fora, such as the United Nations. C. Double Voting Elsewhere, I have argued that the trend among states to permit dual nationality may be indicative of one dimension of a transformation of the international system into what Hedley Bull described as a secular "new medievalism" or "a system of overlapping authority and multiple loyalty."28 Given that democracy has become the predominant means of political legitimization in today's world, a secular neo-medieval polity of overlapping authority and multiple loyalty faces a crucial challenge in its organization of democratic processes. Although individuals may be loyal to different state authorities with respect to different aspects of their lives, participation in existing demoi does not currently comport well with functionally differentiated sites of democratic decision-making. In practice, dual nationality raises the prospect of individuals
Comments made by David Martin at Managing Dual Nationality Meeting in Berlin, July 2000. See Bull 1977 p. 254, as discussed in Koslowski 2000, ch. 7.
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voting in two states. Moreover, the confluence of two trends, spreading democratization and the easing of prohibitions on dual nationality, means that the potential of double voting is growing rather significantly. The practical political consequences of double voting in two states are not that significant as long as the number of dual nationals is relatively low. If, however, many individuals are able to follow the old adage of the Chicago Democratic political machine, "Vote early and often," their votes could, hypothetically, make a significant contribution to electing politicians in two states on the same side of certain policy issues. For example, U.S.-Canadian dual nationals might vote for pro-NAFTA politicians in both the U.S. and Canada. Although the number of US-Canadian dual nationals is small, the number of U.S. and Mexican nationals who may potentially become dual nationals has been estimated to be as many as 5 million. Very few have acquired dual nationality at this point, and Mexican authorities are quick to point out that the amendment only permits retention (or the regaining) of Mexican nationality by those who naturalize(d) to the U.S. - not citizenship. Those Mexicans who naturalize in other countries would retain property rights and their passports, but they would not have voting rights while residing abroad. Although Mexico's ruling party, the PRI, approved separate legislation in 1996 that would permit Mexicans living abroad to vote in Mexican presidential elections (Lizarraga Chavez, 1997, p. 124), such legislation has not been enacted. But the pressure to permit voting by nonresident Mexicans possibly including dual nationals, will likely continue. Again, increased international cooperation would be necessary to ensure voting in only one state. Much like voting registration in federations such as the United States, a system could be devised so that voting registration is transferred when a dual national moves from one state to another. When a dual national registers to vote in the new state of residence, he or she would be obliged to identify the place in which he or she had previously voted or be subject to a penalty. The electoral officials from the new state of residence would then inform the dual national's previous state of residence in order that he or she be removed from the electoral rolls. Such a system would be problematic without the cooperation of dual nationals, because it would be difficult for states to identity them. Moreover, states rarely, if ever, notify each other when nationals of one state have naturalized to another. Although gathering and sharing information on dual nationals is administratively very difficult today, the development of government information technologies may make such tasks much easier in the not-too-distant future (see Koslowski 2001). Much as the linking of enterprise systems through the internet has led to a rapid growth of business-to-business e-commerce, public sector versions of these software packages have been developed that will enable governments to mine information from data warehouses and to automate exchanges with other governments who do likewise. Within the next decade, the technical capabilities for states to gather and to exchange information regarding a dual national's residence will be available. The question is, however, will governments and the people who elected them use these 178
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capabilities? If such information would be gathered and exchanged and states would then be willing to deny political rights based on such information, it would mark a further departure from traditional understandings of sovereignty.
IV. CONCLUSION The current trend among states to permit dual nationality undermines the demographic boundary regime based on international norms that have developed over the past century. If international cooperation to minimize dual nationality is coming to an end and if it is unlikely that unilateral initiatives within receiving states to stem the trend will be politically sustainable, increases in the number of dual nationals are likely. In a world where dual nationality is tolerated and even embraced by states, a corresponding increase in international cooperation regarding military obligations in cases of dual nationality, taxation, voting, etc., will become necessary in order to preempt the problems that prompted the development of international norms against dual nationality in the first place. Provisions of the 1997 Council of Europe Convention regarding multiple military obligations provide an example for such frameworks for international cooperation. Other forms of international cooperation can be envisioned, but, for a variety of reasons, it seems unlikely that states will embark on such cooperative ventures in the immediate future. Nevertheless, it would behoove policymakers to begin to plan cooperative efforts to deal with a world with increasing dual nationality because, whether they like it or not, the number of dual nationals will increase. References Auslaenderbeauftragte 1997: Facts and Figures on the Situation of Foreigners in the Federal Republic of Germany. Bonn: The Federal Government's Commissioner for Foreigners' Affairs. Bancroft, George 1849. Letter to Lord Palmerson, Jan. 26, 1849, reprinted in Sen. Ex. Docs. 38, 36th Congress, 1st Session. 160 (1860). Bar Yaacov, Nissim 1961. Dual Nationality (London: Praeger). Bull, Hedley 1977: The Anarchical Society: A Study of Order in World Politics. (New York: Columbia University Press). Claude, Inis L. 1966. "Collective Legitimization as a Political Function of the UN." International Organization, 20, pp. 267-279. Council of Europe 1963. "Convention on the Reduction of Cases of Multiple Nationality." European Treaty Series No. 43 (Strasbourg: Council of Europe). Council of Europe 1996, "A Review of the Implementation of Community Relations Policies," by the Migration Policy Group, presented to the 6th Conference of European Ministers Responsible for Migration Affairs, MMG-6 (96) 1E, (Brussels: Migration Policy Group). Council of Europe 1997: European Bulletin on Nationality DIR/JIR (97) 4, Strasbourg, March 1997. Council of Europe 1997a: "European Convention on Nationality and Explanatory Report (Provisional)," DIR/JIR (97) 6. Strasbourg, 14 May 1997a.
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R. Koslowski Council of Europe 1997b: "European Convention on Nationality," European Treaty Series. No. 166. Strasbourg: Council of Europe, de Groot, Gerard-Rene 2000. "The European Convention on Nationality: An Incentive for Approving to Access of Foreign Permanent Residents to Nationality," unpublished manuscript. Dillon, Sam 1996: "Mexico Is Near to Granting Expatriates Voting Rights," The New York Times, June 16, 1996. Fineman, Mark 1997: "West Indies islands put citizenship up for sale," Los Angeles Times, November 28, 1997. Flournoy, Jr., Richard W. and Manley O. Hudson, eds., 1929. A Collection of Nationality Laws of Various Countries as Contained in Constitutions, Statutes and Treaties (New York: Oxford University Press). Gallo, Roger 1999. "IRS Loses Bid to Track Overseas Tax-Dodgers," Escape from America Magazine, Vol. 1, No. 4, http://www.escapeartist.com/efam3/efam3.htm. Gazeta Wyborcza 1995. "Opole Conscripts Refuse Army Service," Gazeta Wyborcza, No. 140, June 19, 1995, p. 2. Gettys, Luella 1934. The Law of Citizenship in the United States (Chicago, IL: The University of Chicago Press). Geyer, Georgie Ann 1996. Americans No More: The Death of Citizenship (New York: Atlantic Monthly Press). Hailbronner, Kay, 1992. Einbuergerung von Wander arbeitnehmern und doppelte Staatsangehoerigkeit (Baden-Baden: Nomos). Hammar, Tomas, 1985. "Dual Citizenship and Political Integration," International Migration Review, Vol. 19, No. 3, pp. 438-450. Hammar, Tomas 1990, Democracy and the Nation-State: Aliens, Denizens and Citizens in a World of International Migration (Aldershot: Avebury). Handlin, Lilian 1984. George Bancroft: The Intellectual as Democrat (New York: Harper & Row). Harvard Law School 1929: "Nationality, Responsibility of States, and Territorial Waters, Drafts of Conventions Prepared in Anticipation of the First Conference on Codification of International Law, The Hague, 1930," The American Journal of International Law, Vol. 23 (Supplement). ILC 1954: International Law Commission Yearbook 1954 II, Section 42, 48. Kerry, John 1997. The New War: The Web of Crime that Threatens America's Security (New York: Simon & Schuster). Kobrin, Stephen 1997. "Electronic Cash and the End of National Markets," Foreign Policy, No. 107, pp. 65-77. Koslowski, Rey 1998. "European Migration Regimes: Emerging, Enlarging and Deteriorating," Journal of Ethnic and Migration Studies, Vol. 23, No. 4 (Oct. 1998), 735-749. Koslowski, Rey 2000. Migrants and Citizens: Demographic Change in the European State System (Ithaca, NY: Cornell University Press). Koslowski, Rey 2000a. "Dual Nationality and Military Service: Changing International Norms and Policy Challenges," presented at Dual Citizenship and Identity in the Global Context, Institute for the Study of Economic Culture, Boston University, Saturday, May 6, 2000. Koslowski, Rey 2001. "Inviting the Global Elite In and Keeping the World's Poor Out: International Migration and Border Control in the Information Age," presented at the International Studies Association Meeting, Chicago, Feb. 20-24, 2001. 180
Challenges of International Cooperation League of Nations 1930. "Hague Convention on Certain Questions relating to the Conflict of Nationality Laws" (12 April, 1930), 179 League of Nations Treaty Series 89. League of Nations 1930a. "Military Obligations in Certain Cases of Double Nationality," 178 League of Nations Treaty Series 227. League of Nations 1930b. "Special Protocol Concerning Statelessness," U.K Treaty Series No. 112. League of Nations 1930c. "Certain Case of Statelessness," 179 League of Nations Treaty Series 116. Lesperance, David S. 1999. "Your Passport Portfolio," Escape from America Magazine, Vol. 1, No. 2, http://www.escapeartist.com/efam/second_passport.htm. Lizarraga Chavez, Pablo 1997: "Creating A United States-Mexico Political Double Helix: The Mexican Government's Proposed Dual Nationality Amendment," Stanford Journal of International Law, Vol. 33, 119-151. Mansfield, Edward D. and Jack Snyder 1995. "Democratization and the Danger of War," International Security, Vol. 20: 5-35. Muus, Philip J. 1998: Migration, Immigrants and Policy in the Netherlands: Recent Trends and Developments. Report for the Continuous Reporting System of Migration (SOPEMI) of the Organization for Economic Co-Operation and Development. Newsday 1997. "Extradition Divides Israel, U.S.," Newsday October 4, 1997. OECD 1995, SOPEMI Trends in International Migration, Annual Report 1994 (Paris, OECD, 1995). OECD 2000. Toward Global Tax Co-operation: Report to the 2000 Ministerial Council Meeting and Recommendations by the Committee on Fiscal Affairs, Progress in Identifying and Eliminating Harmful Tax Practices (Paris: Organization for Economic Co-operation and Development). Oezdemir 1996, Presentation by Cem Oezdemir at "Immigration, Incorporation and Citizenship in Advanced Industrial Democracies," the German American Academic Council, Summer Institute, New School for Social Research July, 17-27, 1996. O'Nes, D. 1990. The Guide to Legally Obtaining A Foreign Passport (New York: Shapolsky Publishers, Inc.,). pp. 107-110. PAP 1995. "Poles Serving in Bundeswehr Will Not be Prosecuted," Polish Press Agency, News Wire, July 12, 1995. National Post 1999. "Canadian Kosovars, Serbs Who Enlisted in War Get Reprieve," The National Post, October 26, 1999. Roche Walter F. and Gary Cohen 2000. "INS Insiders Profit on Immigrant Dreams," Baltimore Sun, Feb 20, 2000. Rumpf, Christian 2002. "Citizenship and Multiple Citizenship in Turkish Law," this volume. Schuck, Peter H. 1989. "Membership in the Liberal Polity: The Devaluation of American Citizenship," in Rogers Brubaker, ed., Immigration and the Politics of Citizenship in Europe and North America (Lanham MD: University Press of America). Schuck, Peter H. 1998. "The Re-Evaluation of American Citizenship," in Christian Joppke, ed., Challenge to the Nation-State: Immigration in Western Europe and the United States (Oxford University Press, 1998). Spiro, Peter J. 1997. "Dual nationality and the Meaning of Citizenship," Emory Law Journal Vol. 46, pp. 1411-1485. Starchild, Adam 1993. Second Passports and Dual Nationality (Baltimore, MD: Agora). Straubhaar, Thomas 2000. "Entries into the German Labor Market: From National Front, 181
R. Koslowski Back, and Side Doors to a NEMP - a New European Migration Policy," prepared for the "Magnet Societies" Conference, Loccum, Germany, June 14-18, 2000 http://www.smu.edu/ ~ tower/Straubhaar.html. Szymborski, Filip 2000. "Polish Citizenship: Amendment Eases Restoration," The Warsaw Voice, July 16, 2000. Thompson, Allan 1999. "Canada Eyes Prosecuting Volunteers," The Toronto Star, May 27, 1999. TWIG 1995, This Week In Germany, April 21, 1995.
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CHAPTER
ADMINISTRATIVE SYSTEMS AND DUAL NATIONALITY: THE INFORMATION GAP
Heike Hagedorn
I. INTRODUCTION: FACING DUAL NATIONALITY
Highly industrialized countries have reacted to growing migratory movements by restricting their immigration policies and liberalizing their citizenship policies. The German case is no exception to this international trend. The legal changes undertaken in the 1990s have led to a situation in which immigration has become more difficult for many groups whereas the acquisition of citizenship has been encouraged. Consequently, the prerequisites to acquiring German citizenship have been eased. Despite the liberalizing of citizenship policy, the principle to avoid dual nationality has been maintained throughout all reforms. Dual nationality has emerged, however, as one of the central and most controversial issues in public debates. The political controversy around dual nationality displayed two dimensions of citizenship: one dealt with the implied symbolic value of citizenship, the other with its practical consequences. Especially in the case of dual citizenship, the symbolic attachments and the practical consequences of belonging to two states might be conflicting. The interference of symbolic and practical aspects makes it more difficult to find acceptable solutions to the increasing phenomenon of dual nationality. Coming from the 19th century traditional understanding of a nation, conservative politicians continue to emphasize the ideal of an undivided allegiance embodied in one nationality. They underline their view by stressing the negative and conflicting consequences of dual nationality, for example, dual military obligations. In contrast to this, left-wing parties judge the conflicting potential to be less important and are willing to tolerate dual nationality, despite the possible symbolic and practical consequences. In 1998, when the Social Democrats and the Green Party came into power, the recognition of dual nationality was among their first projects. However, the Christian Democratic party (CDU) used the issue as an opposition strategy during its electoral campaign in the state of Hessen. After losing those elections and David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 183-200 © 2003 Kluwer Law International. Printed in Great Britain.
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consequently the majority in the Bundesrat, the Social Democrats and the Green Party had to agree to a compromise with the liberal party (FDP). Part of the compromise included the reaffirmation of the principle to avoid dual nationality if possible. At the same time, the list of exceptions to this principle (which had already existed before) was expanded and consolidated. Moreover, the principle has not been applied consistently, because it is limited to the naturalization of aliens. So only in the naturalization process and the optional model (under which dual national children who obtained German citizenship under the new ius soli rules must opt for a single nationality at the age of majority) is the administration charged with verifying the possible tolerance or intolerance of dual nationality. Aussiedler ("ethnic" Germans) and children of mixed-nationality marriages continue to have dual nationality in most cases. In short, the principle to avoid dual nationality stands in sharp contrast to the increasing cases of dual nationality due to transnational migration. The phenomenon is reinforced by the increasingly inclusive citizenship laws of receiving states and liberal policies of the sending countries that do not want to lose contact with their nationals abroad. This essay deals with the administrative systems that have the responsibility for resolving the tensions between the growing number of cases of dual nationality and the political wish to limit dual nationality. The possibility of enforcing limitations on dual nationality is closely linked to the existence of a functional information system. Without information about who is a dual national, how they became dual nationals and why they keep both nationalities, a reasonable policy on dual nationality seems impossible. Information appears to be the precondition for an efficient implementation of the new citizenship laws, whereas the lack of information impedes enforcement and wastes resources. The challenges facing administrators will be analyzed in three areas: 1. the established practice of naturalization policy in regard to dual nationality, 2. the newly introduced birthright citizenship, and 3. possible future information systems about changed citizenship status and dual nationality. The first aspect can be studied with empirical data about the number of dual nationals, their countries of origin, and the different implementation of dual nationality regulations by each Land. Until the year 2000, German policy limited the collection of information on dual nationals to the naturalization process. After immigrants obtained German citizenship, the question of other nationalities was no longer of interest to the German government, because the person was treated exclusively as a German citizen. The new birthright citizenship adds another dimension, because the children concerned have to opt for the German or the foreign nationality when they reach the age of majority. This means that the administration has to keep a record of those concerned from their birth until they reach the age of 18. A third aspect deals with information systems that archive data of dual nationals or naturalized 184
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persons over the long term and exchange these data with other countries. The possibilities shall be explored in the last part.1
II. DUAL NATIONALITY IN THE ESTABLISHED NATURALIZATION PROCESS A. The Legal Basis to Avoid or Accept Dual Nationality Until 1990, the Reichs- und Staatsangehorigkeitsgesetz (RuStAG) of 1913 regulated naturalization in Germany.2 Contrary to widespread public perception, the RuStAG does not prohibit dual nationality. At the time the law was created, it was apparently not considered to be an important issue. It was only in 1977 that new guidelines specified that applicants for German citizenship had to renounce their former citizenship. At the same time, the guidelines enumerated a number of exceptions from this principle (Hailbronnerl991). However, the issue of dual nationality was not formally addressed in the law until 1991, when a new Alien Act came into force. Accordingly, legal permanent residents who apply for German citizenship have to renounce their former citizenship. Exceptions are allowed if the state of origin does not recognize loss of citizenship or makes it difficult for them to take on a new nationality. Since 1991, the Alien Act has existed parallel to the RuStAG. The change of government in 1998 led to more changes in the citizenship laws. The new left-wing coalition of the Social Democratics (SDP) and the Green Party pursued as one of their first projects the reform of German naturalization law, including a general acceptance of dual nationality. However, in the meantime the Christian Democrats (CDU) began mobilizing against the issue in their electoral campaigns. In January 1999, they started a campaign against dual nationality in order to gain votes with this controversial issue in the state election of Hessen. The SPD and the Green Party lost the election and, as a consequence, the majority in the second chamber, the Bundesrat. In order to pass the reformed naturalization law, they had to find a compromise with the Liberal Party, the FDP. The revised version led to the amendment of the RuStAG and of the Alien Act in spring 1999. In addition, the states agreed on general administrative rules for the interpretation of the new law. Table 1 illustrates the period of validity of the respective laws and indicates the German translation. The latest reform continues to require the renunciation of the former citizenship (§ 87 Auslandergesetz). At the same time, it expanded and consolidated the catalogue of exceptions. In detail, the current Alien Act of 2000 allows dual nationality for: - persons whose state of origin does not permit its citizens to expatriate, This article is based on the study which I have realized for my dissertation in political science. Hagedorn, Heike (2000) "Wer darf Mitglied werden? Einburgerung in Deutschland und Frankreich." Opladen. It includes a series of interviews with the local, regional and federal administrators charged with the acquisition of citizenship. For further information about the German reforms compare Hagedorn (1999). 185
H. Hagedorn Table 1 Legal bases for naturalization in Germany Until 1991
Reform 1991
Nationality law of 1913 (Reichs-und Staatsangehorigkeitsgesetz) Naturalization Guidelines of 1977 (Einburgerungsrichtlinien)
Alien Act of 1991 (Auslandergesetz)
Reform 2000 Nationality law of 2000 (Staatsangehorigkeitsgesetz) Administrative regulations of 2000 (Verwaltungsvorschrift) Alien Act of 2000 (Auslandergesetz) Administrative regulations of 2000 (Verwalt ungsvorschrift)
-
persons whose state acts in an arbitrary manner, political refugees, elderly persons, persons who would have to accept unreasonable economic disadvantages in their country of origin, - EU-citizens, if the EU-country also allows dual nationality, - young men who would have to fulfill their military service before being dismissed by their country of origin. This means that in spite of the very restrictive official discourse, the German legislation allows a series of important exceptions from the principle of avoidance of dual nationality. The consequence for administrators is that for every case of potential dual nationality, they have to verify whether the applicant can keep both nationalities or not. In order to fulfill this assignment, the staff has to know the details not only of German citizenship regulations but also those of the immigrant's country of origin. At the moment, local administrators who are in charge of organizing the naturalization procedure are often overwhelmed by this task. Although they can ask the Ministry of Interior for help, it would be more efficient to have a central information office they could refer to for possible legal questions. This office could collect and update the citizenship regulations of foreign countries and transmit the information to local administrators as requested. The office could function as a legal advisor for local administrations, who could then take into account the legal aspects, as well as the concrete circumstances of the applicant. Besides a centralized legal information system, it would be useful to have a list of countries that make it difficult for their citizens to expatriate. In these cases the administration could immediately accept dual nationality without having to do further research. Improving and accelerating the administrative procedure seems to be decisive in regard to the increasing numbers of naturalizations. B. The Implementation of the Nationality Law A closer look at historical developments shows that the acquisition of German citizenship has risen steadily since the official end of recruitment of guest workers in 186
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1973-1974. The peak for naturalization of Aussiedler ("ethnic" Germans) was reached in 1995 with 228,335 persons. In total, about 1.6 million Aussiedler have received German citizenship since the end of the Cold War in 1989. Until the year 2000, local administrators had to decide these cases. Since then, the Aussiedler obtain German citizenship automatically in order to relieve some of the burden on localities. The number of naturalizations has also risen steadily during the last decade. It reached its peak in 1998, when 106,790 aliens naturalized. From the end of the labor recruitment policies in 1973 up to 1998, 775,000 aliens acquired German citizenship. Table 2
Total number of naturalizations in Germany 1973-1998
Source: Bundesamt fur Statistik; author's calculations.
The naturalization rate, which indicates the number of naturalized aliens relative to the foreign-born population, highlights even more clearly the changes in German naturalization policy. In Germany the naturalization rate has obviously increased since the introduction of the new alien law in 1991. In 1996 it peaked at 1.2 percent an increase of 20 percent in comparison with the preceding year (1995: 1.0 percent). In 1997 it dropped slightly to 1.13 percent, only to rise again to 1.45 percent in 1998. Overall, the naturalization rate has increased four-fold over the last ten years. (See Table 3.) And the number of persons applying for German citizenship will probably increase even further with the new Alien Act. The requirements for naturalization have been lowered and the public debate has improved the information for potential applicants, encouraging them to acquire German citizenship. Most of these cases require some consideration of the question of dual nationality, and in 20 percent of all cases (1998), dual nationality has finally been accepted. Therefore, dual nationality can no longer be regarded as exceptional in the naturalization policy. In the early 1990s, the rate was even higher with up to 45 percent in 1993 (Auslanderbeauftragte 1999). The acceptance of dual nationality for persons of Turkish origin dropped drastically from 1995 on, but only because the Turkish government revised and liberalized its nationality laws for former citizens. (See Table 4.) In practice, the required renunciation of one's former citizenship was often effectively defeated by the fact that the newly naturalized reapplied for their original 187
H. Hagedorn Table 3 Naturalization rate of alien residents in Germany, 19856-1998
Source: Bundesamt fur Statistik; author's calculations. Table 4 Acceptance of plural nationality for naturalization according to the Alien Act, 1993-1998
Source: Auslanderbeauftragte (1997-2000); author's calculations. 1997 and 1998 do not include dual nationality data for Hamburg.
citizenship. This re-acquisition of citizenship was, until recently, often used by Turkish citizens. According to the center for Turkish studies in Essen, about 90 percent of naturalized Turks there possessed both nationalities.3 Although the practice was widely known, the German administration could not thwart this behavior because the law (§25 RuStAG) did not allow the government to expatriate any person residing in Germany. This section of the RuStAG was introduced after World War II in response to Nazi expatriation of German Jews before their deportation to the camps. With the changed situation, however, the law was reformed in the year 2000 so that German citizenship can now be taken away if the person voluntarily acquires another citizenship, no matter whether he resides inside or outside Germany. However, the administration has to find out about the acquisition of another citizenship in order Compare the newspaper F.A.Z. from 30.10.1997: "Sind es drei Millionen oder nur 300.000?". 188
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to enforce the law. The experiences in the United States show the difficulties in defining a "voluntary" acquisition as well as in discovering the second nationality if the person does not notify the administration himself. An additional informational service might also be advisable as a supplementary tool assisting dual nationals and those seeking it. There they could obtain information about the consequences of dual nationality or of the loss of one nationality, as well as about the applicable rules of both countries. This would strengthen citizens' choices and responsibilities. Such a service could be established as a governmental or a non-governmental organization, although anyone establishing such a service would have to be clear about questions of liability in case inaccurate information was provided. After all, the legal rules can be exceedingly complex, and the service would have to take into account the nationality laws and practice of different countries. However, the responsibility to consider foreign laws in detail has been established by the German government itself. They are already required, in essence, to verify the pros and cons of dual nationality in every case. In addition, more transparency in regard to the administrative decision process could be useful. The gender question is a good example. The statistics reveal that more men than women keep both nationalities. This may be due to the fact that military service is a major obstacle for expatriation. But there is no statistical proof, because the reasons for accepting dual nationality are not recorded. It would be interesting to know more about the exact motivation immigrants have for taking on dual nationality. Table 5 Accepted dual nationality for naturalized Germans (Alien Act) according to sex, 1996
Source: Auslanderbeauftragte (1999); author's calculations.
C. Countries of Origin of the Naturalized Persons: From Western Europe to ExtraEurope The empirical data show that in Germany the acceptance of dual nationality as well as the naturalization rate in general varies considerably by the immigrant's country 189
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of origin. The majority of the naturalized persons are of non-European origin, especially from Turkey (1996: 46,000), followed far behind by Vietnam (3,600), Morocco (3,100), and Yugoslavia (3,000). In contrast, the number of EU-aliens obtaining citizenship is very low. A reasonable explanation is the relatively secure status and the guaranteed rights that Europeans enjoy in Germany, making them unlikely to require changing their citizenship status. Nevertheless, this leads to the paradoxical situation where those persons most likely to be considered well integrated rarely ask for German citizenship.4 Table 6
The main countries of origin or persons naturalized in Germany, 1996
Source: Auslanderbeauftragte (1999); author's calculations.
Immigrants' countries of origin correspond roughly to the countries from which Germany formerly recruited migrant workers in the 1950s and 1960s. The largest group of legal permanent residents living in Germany are persons of Turkish origin (about 2 million). They are followed by resident aliens from the former Yugoslavian Republic (700,000), Italy (600,000), and Greece (360,000). One-fourth of all foreigners in Germany possess the citizenship of another EU member state. A closer look reveals that the naturalization rate as well as the acceptance of dual nationality varies notably from country to country: Tunisians, Moroccans, Vietnamese, and Afghans show relatively high naturalization rates. Turks and Croatians have average naturalization rates. Large migrant groups such as Poles, Yugoslavs, Italians, and Greeks have low naturalization rates (under 1 percent). In other words: Tunisians are naturalized four times more often than Turks and 52 times more often than Greeks (Auslanderbeauftragte 1999). As the following table (Table 7) demonstrates, the acceptance of dual nationality also differs from country to country. Thus, plural nationality is highly tolerated for Greeks, Iranians, Croats, Afghans, Moroccans, and The same phenomenon can be stated for France, where only 10 percent of the naturalized are of West European origin.
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Administrative Systems and Dual Nationality Table 7 Relationship between acceptance of plural nationality and naturalization rate according to the country of origin, 1996
Naturalization rate in % The naturalization rate relates the number of naturalizations to the total number of the national group living in the territory. Source: Auslanderbeauftragte (1999); author's calculations.
Tunisians, normally because the state of origin makes it difficult or impossible for its citizens to relinquish their original nationality. Dual nationality is hardly accepted for Italians, Hungarians, Turks, and Vietnamese. The following diagram illustrates the relationship between the acceptance of plural nationality and the actual naturalization rate. The variety of naturalization behavior can only be explained by specific national reasons. For example, political refugees, like the Vietnamese, have a strong interest in possessing a secure status in their country of residence. Countries like Afghanistan, Morocco, and Tunisia are known to refuse the expatriation of their citizens. For this reason dual nationality has been accepted frequently in the case of Afghans (81.1 percent), Iranians (82.2 percent), Moroccans (80.1 percent), and Tunisians (79.9 percent) (Auslanderbeauftragte 1997). However, Iranians seem to be discouraged by the long and complicated naturalization procedure. For EU-citizens the relationship between their secure status and their willingness to naturalize seems to be inversely related. In other words, the expansion and consolidation of rights for legal permanent residents was not followed by full integration into citizenship, but rather seemed to slow the process down even further. Similar observations can be made about 191
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Canadian immigrants in the U.S. The above interpretation proceeds on the assumption that mainly practical reasons determine the decision for or against naturalization. The administrative work could be accelerated if persons from countries which are known for their reluctance to release their citizens were automatically allowed to have dual nationality. Politically, this poses a dilemma, however, because these states would seemingly be rewarded for their undemocratic policy of not allowing their citizens to choose their own citizenship. D. Regional Differences in the Politics of Citizenship: A Heterogeneous Picture of the "Lander" An analysis of the outcome of citizenship policy at the state level also shows considerable variance. Although there is federal legislation on the acquisition of citizenship, the states show great disparity in the interpretation and the application of naturalization law. This is quite apparent if we compare naturalization outcomes measured by the naturalization rate: while the national naturalization rate was 1.2 percent in 1997, it ranged from 0.72 percent in the Saarland to 1.56 percent in Hamburg. As the rate is the ratio of naturalized persons to all aliens living in the state, it is possible to compare states with different population sizes. The five new states in East Germany were not taken into account, because they have only a very small percentage of aliens (1.6 percent) and possess a totally different demographic makeup due to 40 years of communist rule. Table 8 Naturalization rates in the West-Lander, 1997
As the East German states have a totally different demographic structure due to their longtime isolation, only the West German states are taken into account. Source: Statistische Landesamter; author's calculations.
The naturalization rates of the preceding years prove that this ranking is not accidental. They show an almost identical ordering over time: Bavaria and the Saarland have the lowest rates and Niedersachsen, Berlin, and Hamburg have the 192
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highest rates. In 1996, the rates ranged from 0.66 percent in the Saarland to almost triple in Hamburg (1.79 percent). Some of the states, like the Saarland and Bavaria, argue that they have many more European aliens in their territory, groups who rarely apply for citizenship.5 But even if one calculates naturalization rates for a single national group, for example the Turks, with the exception of Hessen, the order of the states remains exactly the same compared to the naturalization rates for all groups in the same year. Consequently the discrepancies among the states cannot be explained by differences in immigrant national origins. Table 9 Turkish naturalization rates in the Lander, 1996
The naturalization rate of the Turks is higher than the average naturalization rate. The ranking of the states corresponds to the overall naturalization rates in the states in 1996. Source: Statistische Landesamter; author's calculations.
The question which arises is how such differences are possible with the existence of a federal law and precisely formulated conditions. Moreover, the legal statutes supposedly leave no discretionary margin to local administrations. But Germany is a federal republic. Although the acquisition of citizenship is legislated by the federal government, the implementation of naturalization law is left in the hands of each state. The Ministries of the Interior in each state are allowed to organize their own naturalization procedures autonomously within the legal limits of the federal law. The Alien Act of 1991 was deliberately designed without any official guidelines for a ten year period, and in the meantime only non-binding agreements were reached between the federal government and the states on the implementation of naturalization procedures. In contrast, the 1999 reforms included the explicit requirement that the states develop administrative guidelines before January 2000. Although the latest version still has to be ratified by the Bundesrat, the provisional administrative 5
These statements were made in interviews by the respective State Ministries of Interior in February 1998. 193
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regulations are already used in practice. Some requirements are prescribed in detail, like residence status, while others are intentionally kept vague, like security checks or the language test, because the states could not reach an agreement on them. The reasons for the disparities among the states are complex, but state attitudes toward naturalization, the political orientation of the state government, information available to immigrants, and the organizational structure of the local bureaucracy all seem to play a role. One striking example is the different tolerance of dual nationality. The following table illustrates the discrepancy in three selected states. In 1995, for example, dual nationality was accepted in Bavaria in only 10 percent of the cases, but in North-Rhine Westphalia in 40 percent, and in Berlin in 75 percent of the cases. In other words, in Berlin dual nationality was accepted eight times more often than in Bavaria.6 From this perspective, the example of Berlin demonstrates that it was possible to tolerate dual nationality in many cases within the effective law. As a side effect, a more liberal acceptance of dual nationality can lead to higher naturalization rates, when the issue is important for the applicant. Again, the administrative practice is somewhat lacking in transparency. The number of accepted dual nationals is not published in every state. Table 10 Acceptance of dual nationality according to the Alien Act in selected states, 1995
Source: Statistische Landesamter; author's calculations.
The fact that the Alien Act was lacking any administrative guidelines until the year 2000 favored divergent interpretations. But even the recently passed administrative regulations leave room for different readings of naturalization law. The interpretation and the verification of, for example, dual nationality, can be more restrictive or more liberal. Other reasons for variation in state outcomes, such as the dissemination of information and the organization of the naturalization procedure, cannot be detailed further in this article. It is important to know, however, that the disparities Figures given by the respective State Departments of Statistics and Interior. 194
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do not stop at the level of the Lander, but continue at the local level. A study of the districts and cities in North-Rhine-Westphalia revealed that the naturalization rate of Turks - all decisions based upon the alien law - ranged from 0.1 percent to 2.7 percent in 1996 (Thranhardt 1999). This rinding supports the hypothesis that local administrators can have a decisive influence on the naturalization rate. Local variance in the interpretation of the law, the application of dual nationality, personnel capacity, the strictness of controlling documents, the time needed for the procedure, etc., can increase or decrease the number of naturalizations. Of course, these "soft factors" determining naturalization outcomes were not addressed by the law. Yet, the impact of administration on the outcome of the naturalization policy should not be underestimated. It would be valuable to have more transparency of the administrative decision process. To sum up, naturalization law in Germany continues to require the renunciation of former citizenship but allows a series of exceptions. As a result of these exceptions dual nationality is no longer unusual in Germany. It is tolerated with Aussiedler, children from mixed nationality marriages (about 50,000 marriages each year), and for a significant percentage of all naturalized persons. This contradicts the restrictive discourse about the principle to avoid dual nationality and reveals its political character. Nevertheless, the administration has to check in every case whether the applicant meets the exceptions permitting dual nationality. Because the number of naturalizations amounts to 100,000 per year - with the trend increasing over time - it would be advantageous to have a more standardized and unified proceeding. A centralized office providing information about foreign citizenship laws and an information service for (potential) dual nationals with regard to the consequences of dual nationality could help to improve the standards of the administrative process. This should include a list of countries that generally or frequently do not recognize the loss of citizenship of their nationals abroad. At the moment, two years of effort by the immigrant to try to gain release from his or her country of origin is considered to be acceptable. The administrative work has to remain reasonable compared to the outcome. In these cases the government should weigh the administrative cost against the political cost. Transparency is another important factor to facilitate the acquisition of citizenship. This applies to both the reasons for accepting dual nationality and to statistical information about practices in each state. Nevertheless, the dilemma remains that political aims, administrative logic and personal interests of the applicants are often not congruent, which is also true for the newly introduced birthright citizenship.
III. THE OPTIONAL MODEL: THE COSTS AND COMPLICATIONS OF A DECENTRALIZED INFORMATION SYSTEM The recent introduction of birthright citizenship for most children born in Germany to resident alien parents has particular consequences for dual nationality. Because most of these children will acquire German nationality and the nationality of their 195
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parents, they will grow up as dual nationals.7 The optional model requires that they opt for one nationality over the other between the ages of 18 and 23. Three cases are possible: 1. the young person proves that he renounced the nationality of his parents and therefore keeps German citizenship; 2. the young person chooses the nationality of his parents or does not make a decision at all before the age of 23; he will then lose German citizenship automatically; 3. the young person can apply for the acceptance of dual nationality, if he is not able to give up his foreign nationality. Contrary to the normal naturalization procedure, the state administration is obliged to inform the young dual national about his rights and duties. The law prescribes that this has to happen right after he reaches his 18th birthday in an individualized manner, for example, via a direct letter. If the state administration fails to inform him, he will have the right to keep both nationalities. In order to identify the young persons concerned, the naturalization service has to keep track of immigrant children who were born in Germany, from their birth until at least the age of 18. This includes their citizenship status as well as their current address, which leads to several problems. At the moment, the naturalization services and the registration offices still have to set up an adequate computer system to store this information. One objection, noted by the commissioner for data protection, is that the information link between citizenship status and home address lacks legal protections for the individuals concerned. The decentralized structure - both offices operate on a local level - leads to another problem: every time a young dual national moves to another city, the information about his citizenship status has to move with him. It becomes even more complicated when the person immigrates to a foreign country. The administration will often have difficulties finding out his current address, but - as mentioned above - if it fails to inform him in time, he can keep both nationalities. These examples illustrate that the optional model is a political concept with many practical details not yet resolved. The number of persons potentially affected by the optional model can only be estimated. Out of the 100,000 children of foreign parents born in Germany every year, about 60 percent, it is thought, will fulfill the requirements of the law and therefore receive German citizenship at birth. Moreover, the parents of children younger than ten years old can demand German citizenship for them. However, this is a provisional regulation, permitting such a demand only from January 1 until December 31, 2000. For this group, the process of opting for a single nationality at majority will become relevant from the year 2008 on, whereas for most who will
The special case of mixed marriages, where the child will receive three or more nationalities, is not considered in this example.
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obtain birthright citizenship under the new German law, the relevance will arise from the year 2018 on. In conclusion, the newly introduced optional model demonstrate that the clarification of the status and the registration of dual nationals, even for the limited time between birth and majority, is costly and complicated. Transparency about who keeps both nationalities, for what reason and in which state, can be useful to improve both nationality legislation and the organization of nationality procedures. This kind of impersonal statistical information can easily be collected compared to information systems including names or addresses. The possibilities and interests of such systems will be explored in the next part.
IV. A CENTRALIZED INFORMATION SYSTEM AND THE PROTECTION OF PERSONAL DATA At the moment, Germany does not have a centralized information system where all citizens, all residents, or all naturalized persons are registered. This is due to the experiences during the Nazi regime, when the centralized registration system was abused. Therefore, the Federal Republic of Germany installed decentralized registration offices only at the community level, which is already more than in most other countries (e.g., U.S.A.). In order to improve the enforcement of rules that limit dual nationality, a centralized information system might be useful. Three different types are thinkable: 1. a centralized archive of naturalized dual nationals, 2. a centralized archive of all dual nationals residing in Germany, 3. an international arrangement sharing information about changed citizenship status. The biggest obstacle to such information systems is the German data protection law, which does not allow a centralized archive without a clearly identified purpose and need. The argument to register naturalized dual nationals only for curiosity's sake is not a sufficient reason. Dual nationals who passed the naturalization procedure or the optional model legally possess both nationalities. Why should they be registered? The same is true for a general archive of dual nationals, including children from cross-national marriages as well as Aussiedler. The effect of this nonregistration policy is that despite the controversial debate on dual nationality, the actual number of dual nationals living in Germany is not known. The federal commissioner for foreigners estimates their number at between two and three million. But even the exact number would not say anything about the active use of the second nationality. Another aspect hindering the registration of dual nationals is the equality argument. Naturalized persons, whether they have one or two nationalities, must be treated equally to citizens with German parents. The situation is different for aliens residing in Germany, who are registered in the Auslanderzentralregister. The equality principle also does not apply in the same manner for persons who possess illegally 197
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two or more nationalities, but by definition they have no interest in being registered. If the administration discovers them, they will lose their German citizenship. In these cases, it would be helpful if the foreign government would inform the German government if a German citizen acquires or reacquires another citizenship. Experience indicates that the reacquisition of citizenship happened in the past. As mentioned earlier, special circumvention was used by Turks applying for German citizenship and afterwards reacquiring Turkish citizenship. The German legislation has been changed as a result, so that a person who voluntarily acquires another citizenship will lose his German citizenship, even if he resides in Germany. In any case, the German administration has to find out about the reacquisition in order to enforce the new paragraph. Countries like Turkey will often be reluctant to share information about their citizens, however, because they consider this information to fall under the protection of their national sovereignty. In fact, the same is true for European countries, including Germany. They do not genuinely seek a common European citizenship policy.8 If an international system sharing information about changed citizenship were established, Germany would have to take part in it. But the transmission of information concerning the acquisition of German citizenship to foreign governments is very questionable from the point of view of data protection. Who wants to have information about his person sent to another - possibly undemocratic - regime? Politically, this might be imaginable inside the European Union, but interest in such a scheme is minimal, as most of the countries do not care about dual nationality anyway. In addition, the identification of persons on an international level seems to be impossible. Names alone will not be enough, and fingerprints are not likely to be taken. It is more probable, then, that Germany could reach an agreement with the most important immigration and emigration states, which would allow one-way information about Germans acquiring another citizenship. But this would be costly, as the other states would need an incentive to do this work. The information would still be rudimentary and not always reliable. And some countries might not be able or willing to deliver the desired information. From an international point of view, the registration of citizens and of eventual dual nationals is very rudimentary. Some countries, for example France, have a centralized register for all naturalized citizens, but it is used only internally to prove the French citizenship of persons who claim it. The same purpose is fulfilled by the decentralized German system. Many of the developing countries, from which a large porportion of current immigrants come, do not possess a functional registration system at all. Archives containing information about dual nationals do not yet exist. And as long as citizenship politics are covered under the umbrella of national sovereignty, it will be difficult to establish a system exchanging data about citizenship status across national borders. 8
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For the European citizenship laws and politics compare the article of Gerard-Rene de Groot.
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V. CONCLUSION: FILLING THE INFORMATION GAP The above analysis demonstrates that the political desire to limit dual nationality confronts administrators with several problems, mainly due to the lack of information. Some policy changes could improve the proceedings for both administrators and applicants by filling some of the information gap. These include creating: - a central information office collecting the citizenship regulations of foreign countries and transmitting it to local administrators, - a consulting service for (potential) dual nationals with regard to the consequences of dual nationality and the applicable nationality rules in the countries concerned, - a list of countries that generally or frequently complicate the expatriation of their citizens, - empirical evidence about immigrants' motives for opting for dual nationality, - transparency with regard to the administrative decision process, and - statistical data on the citizenship policy of the states. Data protection laws, financial expenditures, and political costs are likely to prevent the implementation of other suggestions such as: - a centralized archive on naturalized citizens, - a centralized archive on dual nationals, and - an international arrangement for sharing information about citizens. Contrary to the insistence that immigrants should be members of only one state, certified by one nationality, the phenomenon of increasing dual nationality due to transnational migration can be observed in all developed countries. The trend in receiving states to liberalize citizenship policies often goes along with an interest on the part of sending states not to lose contact with their emigrated citizens by allowing them to keep their original nationality. This is not a new phenomenon, even in Germany. At the turn of the century, when Germany was still a country of emigration, reforms of the Reichs- und Staatsangehorigkeitsgesetz (RuStAG) were intended to expand the possibilities for emigrated Germans to keep their nationality and to transmit it to the next generation. Mexico is a very recent example: In 1996, the U.S. Congress passed a Welfare Reform Act, which restricted the access of undocumented aliens and legal permanent immigrants to certain social welfare programs. In reaction to this, the Mexican government expanded its nationality law in 1998 allowing Mexicans who immigrated to the United States to keep their Mexican nationality when applying for U.S. citizenship (Aleinikoff 1998). In doing so, the Mexican government intended to encourage Mexicans in the U.S. to naturalize in order to obtain a secure status and access to the social welfare system without losing all ties with Mexico.9 For further information concerning the American-Mexican experiences on dual nationality compare the chapter by Michael Jones Correa, this volume, and Spiro 1998.
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H. Hagedorn With the divergent interests of sending and receiving countries, efforts to limit dual nationality will be difficult to realize.10 It might be easier to agree on solutions for the specific instances in which interests conflict, like, for example, dual military service or dual taxation. However, the most effective way to limit dual nationality does not lie in the laws concerning the acquisition of citizenship but those concerning the loss of citizenship. Without a genuine link, persons should lose their citizenship (with the exception of statelessness). This should certainly be the case for second or third generation immigrants born in another country, who have less and less contact with the country of origin of their ancestors. Nevertheless, administrators will have to find a balance between limiting dual nationality and the considerable financial and political costs of enforcing the limits.
Bibliography Aleinikoff, Alexander (1998): Between Principles and Politics: The Direction of U.S. Citizenship Policy. Washington, D.C. Auslanderbeauftragte der Bundesregierung (1997): Daten und Fakten zur Auslandersituation 1995. Bonn. Auslanderbeauftragte der Bundesregierung (1998): Daten und Fakten zur Auslandersituation 1996. Bonn. Auslanderbeauftragte der Bundesregierung (1999): Daten und Fakten zur Auslandersituation 1997. Bonn. Auslanderbeauftragte der Bundesregierung (2000): Daten und Fakten zur Auslandersituation 1998. Bonn. Hagedorn, Heike (1999): Wer soll Deutscher werden? Liberale Trends in der deutschen Einburgerungspolitik. In: Ulrive Davy (Hg.): Politische Integration der auslandischen Wohnbevolkerung. Baden-Baden, p. 152-172. Hagedorn, Heike (2000): Wer darf Mitglied werden? Einburgerung in Deutschland und Frankreich im Vergleich. Opladen. Hailbronner, Kay und Gunter Renner (1991): Staatsangehorigkeitsrecht. Kommentar. Munchen. Spiro, Peter (1998): Embracing Dual Nationality. Occasional Paper No. 1. International Migration Policy Program. Carnegie Endowment for International Peace (Hg.), Washington, D.C. Thranhardt, Dietrich (1999): Einwandererkulturen und soziales Kapital. Eine komparative Analyse der Zuwanderungsnationalitaten und Bundeslander. Munster.
10
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For the positive aspects of dual nationality compare Spiro (1998).
CHAPTER 9
LOSS OF NATIONALITY: A CRITICAL INVENTORY
Gerard-Rene de Groot
The object of this contribution is an inventory of the rules regarding the loss of the nationality of a state. Nationality should indicate a genuine link between a state and a person.1 The nationality law of a state therefore provides rules determining under which conditions the nationality of the state involved is attributed to a person who is deemed to have a genuine link with this state. Furthermore, rules are given that set out the conditions under which the nationality of the state can be acquired, because the person involved has built up a link with this state, which legitimates the possession of the nationality. Finally, the nationality law provides rules on the loss of nationality. In certain cases a person is deemed to have lost his genuine link with a state, while in other cases the state may deprive a person of its nationality because of a lack of a genuine link with the person. Moreover a person may divest himself of the nationality of a state with which he no longer has a serious link. Most nationality legislation also includes rules imposing or permitting loss of nationality because of irregularities during the acquisition of a nationality by naturalization or declaration of option. Some jurisdictions allow deprivation of nationality when certain manifestions of disloyalty of a person towards his state are discovered. The rules on the loss of nationality in the various states show a remarkable variety because only a few international documents contain concrete rules on loss of nationality. Art. 15(2) of the Universal Declaration of Human Rights2 states that nobody may be deprived arbitrarily of his nationality, but does not indicate under which Compare the Nottebohm-decision ICJ Reports 1955, 4 (23); Fontes iuris gentium, Series A, sect. 1, tomus 5, 81. Adopted on 10 December 1948. Resolution 217A (III) of the General Assembly of the United Nations, UN General Assembly Official Records 3rd Session, Resolutions part I, 71. See on this resolution Marie-Helene Marescaux, Nationalite et statut personnel dans les instruments des Nations Unies, in: Michel Verwilghen, Nationalite et statut personnel, Brussels 1984, 18-24. David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 201-299 © 2003 Kluwer Law International. Printed in Great Britain.
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circumstances one has to conclude that there is an arbitrary withdrawal of a nationality. The same paragraph of the Universal Declaration guarantees the right of a person to change his nationality, but it is not indicated under which conditions, and must therefore also be qualified as a rather vague rule. The 1957 Convention on the Nationality of Married Women3 set forth some rules in respect of non-loss of nationality by marriage or as a consequence of being married:4 the sole fact of marriage shall not cause loss of nationality, and loss of nationality by the husband shall not cause ex lege the loss of nationality by his wife. The most concrete obligations, which have consequences for the regulation of the grounds of loss, exist in the 1961 Convention on the Reduction of Statelessness.5 In some cases loss, of nationality is forbidden if the consequence would be Statelessness. In Europe the 1963 Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality 6 is still influential. It prescribes voluntary acquisition of a nationality as a ground for loss of the previous nationality between the contracting states. In many jurisdictions the influence of these international rules can be observed. But compared to rules which obviously are to some extent inspired by the above mentioned rules, one can find many provisions which are shaped by national experiences and policies. A very important development in nationality law, in particular for the grounds of loss, is the 1997 European Convention on Nationality 7 (ECN), which came into force on 1 March 2000. Art. 7 and 8 of that Convention give for the first time in an international legal document, an exhaustive list of acceptable grounds for loss: Article 7 - Loss of nationality ex lege or at the initiative of a State Party 1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases: a. voluntary acquisition of another nationality; b. acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant; c. voluntary service in a foreign military force; d. conduct seriously prejudicial to the vital interests of the State Party;
Concluded in New York on 20 February 1957, UNTS vol. 309, 65. Compare as well art. 8-11 of the Hague Convention on Nationality of 12 April 1930, UNTS vol. 179, 89 and art. 9(1) and (2) of the New York Convention on the Elimination of Discrimination against Women of 18 December 1979, Trb. 1980, 146; UNTS vol. 1249, 13. Concluded in New York on 30 August 1961, UNTS vol. 989, 175. Initiated by the Council of Europe and concluded in Strasbourg on 6 May 1963, UNTS vol. 634, 221; ETS 43. Also initiated by the Council of Europe and concluded in Strasbourg on 6 November 1997, Trb. 1998, 10; ETS 166.
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e. lack of a genuine link between the State Party and a national habitually residing abroad; f. where it is established during the minority of a child that the preconditions laid down by internal law which led to the ex lege acquisition of the nationality of the State Party are no longer fulfilled; g. adoption of a child if the child acquires or possesses the foreign nationality of one or both of the adopting parents. 2. A State Party may provide for the loss of its nationality by children whose parents lose that nationality except in cases covered by sub-paragraphs c and d of paragraph 1. However, children shall not lose that nationality if one of their parents retains it. 3. A State Party may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this article if the person concerned would thereby become stateless, with the exception of the cases mentioned in paragraph 1, subparagraph b, of this article. Article 8 - Loss of nationality at the initiative of the individual 1. Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless. 2. However, a State Party may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad. In this paper the list of art. 7 and 8 will be used as tertium comparationis for the analysis and comparison of the different grounds of loss of nationality in the various jurisdictions. The grounds of loss of nationality will be described and analyzed in the order of the previously mentioned provisions of the ECN. Furthermore, an attempt will be made to evaluate which grounds for loss of nationality conform with the rules of the ECN and which provisions do not. Nevertheless, the ECN is not used as a kind of gospel for nationality law matters. Critical remarks will be offered on some of the rules of the ECN. The tertium valutationis8 of these critical remarks is the question whether, in certain cases, a serious connection between a person and the state of his nationality still exists that can be classified as a genuine link. A justification of the choice of jurisdictions included in this study is necessary. In light of the fact that this paper is prepared in the framework of the German-USMexican-Turkish research project on problems of multiple nationality, the jurisdictions of the US, Mexico and Turkey are included. Furthermore, next to Germany, all jurisdictions of the European Economic Area are included in order to give a good overview of the attitude of this part of Europe. In this paper the jurisdictions On the distinction between tertium comparationis and tertium valutationis, see Gerard-Rene de Groot/ Hildegard Schneider, Das Werturteil in der Rechtsvergleichung, Die Suche nach dem besseren Recht, in: Comparability and Evaluation, Feestbundel Kokkini-Iatridou, 's Gravenhage 1994, 53-68. 203
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of Moldova9 and Canada will be included as well.10 Furthermore, some remarks on Polish nationality law will be made. Moldova has already ratified the ECN. The provisions of loss of nationality of this country therefore give some profile to the list provided by art. 7 and 8 of the ECN. In Poland the ratification process of the ECN is in preparation and a whole new bill on Polish nationality is pending in parliament.11 In Canada, the House of Commons passed a new act with respect to Canadian citizenship on 30 May 2000.12 The bill is now pending in the Canadian Senate.13 Furthermore, Canada participated in the elaboration of the ECN, and it is expected that Canada will ratify this convention.14 In this paper references to the legislation of the different jurisdictions will be given in a highly abbreviated form. For example "15(l)(b) NL" means "art. 15, paragraph 1, lit. b of the Nationality Act of the Netherlands." To indicate the nationality legislation of the different countries, the following abbreviations are used: A = Austria; B = Belgium; C = Canada; DK = Denmark; FIN = Finland; FR = France; G = Germany; GR = Greece; IC = Iceland; IRL = Ireland; I = Italy; L = Luxembourg; MEX = Mexico; MOL = Moldova; NL = Netherlands; N = Norway; P = Portugal; POL = Poland; SP = Spain; SW = Sweden; SWIT = Switzerland; T = Turkey; UK = United Kingdom; USA = United States of America. Detailed data on the nationality legislation in force in these countries are given in Annex 1. In the footnotes references are occasionally made to older nationality statutes of the mentioned countries. In those cases the paper provides only the number of a provision and the year of enactment of the statute involved. A list of treaties with provisions of relevance for nationality law is given in Annex 2; for each one it is indicated which countries included in the research for this article have ratified the treaty involved. Reservations relevant for the grounds of loss are mentioned. Other reservations and declarations are omitted. In respect of each ground of loss, a schedule of the regulations of the different countries is provided in order to enable the reader to get a quick first impression of the various solutions and details.
In Moldova, a new Nationality Act was adopted on 2 June 2000 and promulgated in the Official Gazette ("Monitorul Oficial") Nr. 98-101 709 of 10 August 2000. I used a trilingual edition published by Alexandru Ohotnicov. The English translation was prepared by Veaceslav Musteata. Regrettably the jurisdiction of Slovakia could not be included, because no reliable information on the recent modification of the Slovakian nationality act (after Slovakia ratified the ECN) could be found. I used an English translation (by Marcin Pruss) of the bill in the version pending in the Sejm in June 2000. See http:/www.parl.gc.ca/36/2/parlbus/chambus/house/bills/summaries/cl6-e.htm (last visited on 25 October 2000). Although one has to realize that, due to the parliamentary elections of November 2000, the bill has to pass both chambers of parliament again. Compare Norman Sabourin, The Relevance of the European Convention on Nationality for NonEuropean States, paper delivered on the 1st European Conference on Nationality, Strasbourg 18 and 19 October 1999. 204
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I. VOLUNTARY ACQUISITION OF A FOREIGN NATIONALITY15 A. General Remarks: Treaties The first ground for loss of a nationality allowed by art. 7 ECN is the voluntary acquisition of another nationality. Some other international instruments include provisions on this ground for loss. In respect of this ground for loss, art. 7(2) of the Convention on the Reduction of Statelessness of 1961 underlines that this loss is only acceptable if the foreign nationality is really acquired. The application for a foreign nationality should not automatically cause the loss. It provides: A national of a Contracting State who seeks naturalization in a foreign country shall not lose his nationality unless he acquires or has been accorded assurance of acquiring the nationality of that foreign country. Voluntary acquisition is the core rule of the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Mulitiple Nationality of 1963. art. 1(1) of that Convention stipulates: Nationals of the Contracting Parties who are of full age and who acquire of their own free will, by means of naturalization, option or recovery, the nationality of another Party shall lose their former nationality. They shall not be authorised to retain their former nationality. Nevertheless in 1993 a Second Protocol16 to the 1963 Convention was opened for signature, allowing exceptions to be made to the main principle of art. 1 of the 1963 Convention. Under the Protocol, voluntary acquisition of a foreign nationality does not necessarily cause the loss of the previous nationality if: a national "acquires the nationality of another Contracting Party on whose territory either he was born and is resident, or has been ordinarily resident for a period of time beginning before the age of 18;" a spouse "acquires of his or her own free will the nationality of the other spouse;" or a minor "whose parents are nationals of different Contracting Parties acquires the nationality of one of his parents." Three contracting states of the 1963 Convention have ratified this Second Protocol in the past few years: France, Italy, and the Netherlands.17 Between these countries, art. 1 of the 1963 Convention is no longer operative for the categories mentioned in the Protocol. As we will see later on, the French and Italian nationality statutes do not mention voluntary acquisition of a foreign nationality as a ground for loss of nationality. Therefore, French and Italian nationals belonging to the categories Compare Gerard-Rene de Groot, Staatangehorigkeitsrecht im Wandel, Koln 1989, 282-287. Concluded on 2 February 1993 in Strasbourg, ETS 149; Trb. 1994, 265. Italy ratified the Second Protocol on 27 January 1995, France, on 23 February 1995, and the Netherlands, on 19 July 1996. The Second Protocol came into force between the first two states one month after the second ratification, i.e., on 24 March 1995. The Netherlands is bound by the Protocol since 20 August 1996. See Tractatenblad 1994, 265 and 1996, 201. 205
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mentioned in the Second Protocol may acquire the nationality of another country which ratified the Second Protocol without losing their original nationality. Nationals of the Netherlands still lose their previous nationality when acquiring the nationality of France or Italy even if they belong to the privileged categories of the Second Protocol, because the Netherlands has not yet modified its domestic nationality legislation. However, a bill proposing to adapt the nationality legislation to the rules of the Second Protocol is pending in parliament.18 B. Loss The nationality legislation of a considerable number of countries provides that voluntary acquisition of a foreign nationality may cause the loss of the nationality of the country involved. Some countries always provide for loss if a foreign nationality is acquired voluntarily, without making any exceptions. An example is art. 15 (a) NL, according to which a person who is of full age19 shall lose his Netherlands nationality by acquiring another nationality of his own free will.20 Similar provisions can still be found in all Scandinavian countries: 7(1) DK, 8(1) FIN, 7(1) IC, 7(1) N, 7(1) SW. The same applies for Belgium: 22(1)(1) and (2) 21 and Luxembourg: 25(1) L. In the Netherlands22 and in Sweden,23 proposals to respectively modify and repeal the above mentioned provisions are pending in parliament. In this context art. 37(B)(I) MEX has to be mentioned as well, where voluntary acquisition of a foreign nationality is mentioned as grounds for ex lege loss of Mexican nationality, but since 20 March 1997, the provision only applies to naturalized Mexicans.24 Previously, voluntary acquisition of a foreign nationality was a general ground for loss of Mexican nationality.25 The restriction of this ground for loss to naturalized citizens conflicts with art. 5(2) ECN, where it is stressed that each state party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently.26 18
19
20 21
22 23 24
25 26
206
Bill 25 891 (R 1609) has already been accepted by the Chamber of Representatives ("Tweede Kamer") and is scheduled for debate in the Senate for December 2000. This is a person who has attained the age of eighteen or has married before attaining that age; see art. l(b) NL. Art. 7( 1) and (3) Act 1892 and - for naturalization - art. 9( 1) Civil Code 1838 and art. 10(1) Act 1850. See art. 17(1) Code Civil 1804; art. 11(1) Act 1909; art. 18(1) Act 1932. Belgium provided, from 1926 until 1991, an exception for those Belgians, who still were subject to military obligation. Bill 25 891 (R 1609). Bill 1999/2000:147, sent to parliament on 8 June 2000. In force since 20 March 1998. See Carlos Arellano Garcia, Derecho internacional privado, 13th edition, Mexico 1999, 314-323. See art. 37(a)(I) Constitucion in the version of 18 January 1934. Compare 19(1 )(e) IRL, where deprivation of the nationality of a naturalized Irish citizen is possible, if they voluntarily acquire a foreign nationality.
Loss of Nationality: A Critical Inventory
C. Loss: Exceptions Several countries provide in principle for ex lege loss of nationality by voluntary acquisition of a foreign nationality, but make some exceptions: (a) The person involved was granted the right to retain the nationality before acquiring the second This is for example the case in Austria, where the conditions for permission to maintain the nationality in case of acquisition of a foreign nationality are listed in par. 28A: 1. the maintenance of Austrian nationality has to be in the interest of Austria due to the achievements ("Leistungen") of the applicant in the past or to be expected in the future or due reasons, which have to be especially taken into account; 2. the foreign country whose nationality the person involved wishes to acquire consents to the maintenance of nationality if such consent is provided for under international agreements; and 3. the conditions under par. 10(1) (2-4, 6 and 8)27 are met, i.e. no criminal record, no danger for public policy or security in Austria, no relations with foreign States which could harm the interests or reputation of Austria. If the conditions listed in par. 28 are met, an applicant has the right to receive permission to retain Austrian nationality although he voluntarily acquires another nationality. However, the first condition gives the Austrian authorities wide discretion. It has to be stressed that permission is only granted if an interest of the Austrian Republic requires it to do so. A special interest of the individual to retain Austrian nationality is not sufficient.28 In Germany par. 25(2) provides for the possibility of written consent from the German authorities to retain citizenship in certain cases of voluntary acquisition of a foreign nationality. Since 1 January 2000, par. 25(2)(2) G states that the decision regarding an application for permission to retain nationality must take into account public and private interests. ("Die beruhrten offentlichen und privaten Belange sind gegeneinander und untereinander abzuwagen").29 If the applicant has his habitual residence abroad, attention has to be paid to whether continuous ties with Germany are likely ("ob er fortbestehende Bindungen an Deutschland glaubhaft machen Par. 10 A deals with the conditions for naturalization. Herbert Mussger/Peter Fessler, Osterreichisches Staatsburgerschaftsrecht, 4th edition, Vienna 1996, 99-101, with references to Verwaltungsgerichtshof 25. November 1987, Zeitschrift fur Verwaltung 1988, 1499 and Verwaltungsgerichtshof 4. April 1990, Zeitschrift fur Verwaltung 1991, 677. See also Walter Zeyringer, Autriche, Nr. 77, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, looseleaf edition. For more detail see Allgemeine Verwaltungsvorschrift zum Staatsangehorigkeitsrecht (StAR-VwV) of 18 October 2000, comments on par. 25. Compare as well the paper of Rey Koslowski, Challenges of International Cooperation in a World of Increasing Dual Nationality, this volume. 207
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kann"). Before 1 January 2000, the consent stated in par. 25(2) was not often granted.30 In the future it will be considerably easier to acquire this consent. An obvious difference between the Austrian and German provisions is that in Austria consent to retain Austrian nationality is given only because of a specific interest of the state, whereas in Germany the interest of the individual involved can also provide a reason for giving permission. It should be noted that both countries ratified the 1963 Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, and both made the reservation in respect of the right to allow any of its nationals to retain their previous nationality in case of voluntary acquisition of a foreign nationality. (b) The person involved still has to fulfill his military obligations This exception was the case in Belgium until 1991. Art. 22(2) B (old) provided that a person who has reached the age of eighteen years and is subject to military service obligations ("qui est encore soumis aux obligations du service militaire pour 1'armee active et sa reserve") needed the authorization of the King in order to lose Belgian nationality by voluntary acquisition of a foreign nationality. This condition was introduced into Belgian law in 1926 and abolished by the act which allowed the ratification of the 1963 Convention, because it did not conform with the aim and purpose of that Convention.31 Furthermore, the condition was to become obsolete, because Belgium abolished mandatory military service.32 Finally, the consent involved was, in practice, always granted.33 (c) The person involved does not live abroad, but still lives within the country See, for example, Spain art. 24(1), according to which persons of full age ("emancipados") who have their habitual residence abroad lose Spanish nationality if they voluntarily acquire another nationality or exclusively use the other nationality, which was attributed34 to them before they reached full age (emancipation). A contrario, we can conclude that a Spanish national living in Spain does not lose his nationality by voluntary acquisition of another nationality. Until 1 January 2000, the German nationality act also provided that a German living in Germany would not lose his nationality by voluntary acquisition of a Kay Hailbronner/ Gunter Renner / Christine Kreuzer, Staatsangehorigkeitsrecht Munchen 1998, 2nd edition, comments 28-36 on par. 25 RuStAG; Fritz Sturm, Allemagne, Nr. 122, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, looseleaf edition. Regrettably, statistical data on the application of par. 25 (2) do not exist; information given by telephone by the German Ministry of Internal Affairs on 8 November 2000. Act of 22 May 1991, Moniteur beige 1991, 15.109, in force since 16 July 1991. Act of 31 December 1992, in force since 1994. See Charles-Louis Closset, Traite de la Nationalite Beige, Bruxelles 1993, 377 with further references. The Spanish text uses the word "atribuida", which is - if I read it correctly - more narrow than the English expression "acquired," because it does not include cases where the person involved acquired the nationality by declaration of option or by naturalization.
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foreign nationality, but this provision (25(1) G (old)) was abolished. Until Italy abolished voluntary acquisition of a foreign nationality as a ground for loss in 1992, Italy also provided for an exception in case of residence in the country (art. 8(1), Act 1912). (d) The acquisition of certain specified foreign nationalities This exception is of paramount importance in Spain. Art. 24(2)(2) SP35 provides that the acquisition of the nationality of Latin-American countries, Andorra, Philippines, Equatorial Guinea or Portugal is not enough for the loss of the Spanish nationality of origin.36 Bill 122/000003 submitted by the "Grupo Parlamentario Socialista" to the Spanish parliament on 24 April 2000 proposes to add the nationalities of the Member States of the European Union to this list. Although it is very uncertain whether this proposal will be accepted, it is interesting to note this attention to the special ties of the Member States of the European Union with each other. The restriction of the exception made by art. 24(2)(2) to Spanish nationals by origin ("espanoles de origin") excludes naturalized Spanish nationals from the exception and therefore violates art. 5(2) ECN. (e) In case of war An example is art. 24(4) SP, which provides that Spanish nationality is not lost if Spain is at war. (f) The exceptions made by the 1993 Second Protocol to the 1963 Convention These exceptions, mentioned previously, may apply for the states which ratified this Protocol (France, Italy, and the Netherlands), if a national acquires the nationality of another contracting state. In the Netherlands, bill 25 891 (R 1609) proposes to make several exceptions to the general rule that voluntary acquisition of a foreign nationality causes the loss of Netherlands nationality, inspired by the Second Protocol of the 1963 Strasbourg Convention. The proposed new art. 15 prescribes - as far as is relevant here - that Netherlands nationality is still lost by voluntary acquisition of a foreign nationality, but that this ground for loss does not apply if the national involved a) was born in the foreign country whose nationality he acquires and has his habitual residence in that country; b) was living as a minor during a continuous period of at least five years in the country whose nationality he wants to acquire; or c) acquires the nationality of a spouse or registered partner.37 It has to be stressed that nearly all the previously mentioned exceptions are In accordance with art. 11(3) of the Spanish Constitution. In this context it has to be mentioned that Spain concluded treaties with twelve Latin-American countries on double nationality allowing the voluntary acquisition of the nationality of a contracting state without losing the original nationality. See Juan Aznar Sanchez, La doble nacionalidad, Madrid 1977. See on the institution of "registered partner" the thorough comparative report of Caroline Forder prepared for the 5th Family Law Conference of the Council of Europe, 15th/16th March 1999. 209
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allowed by art. 7(1 )(a) ECN, because this article allows voluntary acquisition of a foreign nationality to serve as a general ground for loss, but does not oblige Member States to provide for any ground of loss listed in art. 7. What is problemetic, in view of art. 5(2) ECN, are the Mexican and Spanish provisions, because of the different, and in my opinion discriminatory, treatment of nationals of origin and naturalized citizens. D. No Loss In contrast, a considerable number of countries do not include voluntary acquisition of a foreign nationality as a ground for loss of their nationality. For example, art. 11 I stresses that the citizen who possesses, acquires, or regains a foreign citizenship shall keep the Italian one. Precisely because of the fact that voluntary acquisition of a foreign nationality does not in principle have consequences for the possession of Italian nationality, it is remarkable that art. 24 I obliges an Italian citizen, who acquires, regains, or chooses a foreign citizenship, to communicate this to the registrar of the place of residence or, if he resides abroad, to the competent consular authority within three months from the acquisition, recovery or option. If he does not fulfill this obligation, he is subject to a fine of between 200,000 and 2,000,000 Lire. This provision can be understood if one realizes that Italy is still a contracting state of the 1963 Convention. Furthermore, in the very special situation of war, loss of Italian nationality because of voluntary acquisition of another nationality is still possible. Italy abolished voluntary acquisition of a foreign nationality as a ground for loss in 1992.38 France (since 1973),39 Ireland, Portugal (since 1981 ),40 Switzerland,41 the United Kingdom (since 1949),42 and Canada (since 1977) also do not list voluntary acquisition of a foreign nationality as a ground for loss. In Sweden bill 1999/2000:14743 proposes to abolish voluntary acquisition of a foreign nationality as a ground for loss of Swedish nationality completely. Poland did abolish voluntary acquisition of a foreign nationality as a ground for loss of nationality in 1951, as Act of 5 February 1992, Nr. 91, Gazetta Ufficiale 15 February 1992, Nr. 38. France is still a contracting state of the 1963 Convention and of the 1993 Second Protocol. In case of voluntary acquisition of the nationality of another contracting state, French nationality can be lost. In case of voluntary acquisition of a foreign nationality, France allows renunciation of French nationality, except in cases where the person involved is still subject to military service obligations. See Rui Manuel Moura Ramos, Do Direito Portugues da Nacionalidade, Coimbra 1984, 177-196 on the grounds why Portugal abolished voluntary acquisition of a foreign nationality as a ground for loss and abolished other grounds for loss as well. Since 1981 Portuguese nationality can only be lost by renunciation by the person involved. Switzerland never provided for loss of nationality because of voluntary acquisition of a foreign nationality. From 1870-1949 voluntary acquisition of a foreign nationality was a ground for loss of British nationality, although between 1870-1914 a declaration of retention was allowed. See sec. 6 Act 1870 and sec. 13 Act 1914. Sent to parliament on 8 June 2000. 210
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did all the former socialist countries'in Middle and Eastern Europe.44 The bill on Polish nationality pending in parliament does not propose to reintroduce this ground for loss. E. No Loss: Exceptions Some of these countries, however, make exceptions in particular cases: (a) In case of war Art. 12(c) I provides that an Italian citizen shall lose his Italian nationality when the state of war ceases if, during the state of war against a foreign state, he voluntarily acquired the nationality of this state. This Italian provision is a remarkable contrast to the Spanish rule, which specifies that Spanish nationality is in principle lost by voluntary acquisition of a foreign nationality, but inter alia not if Spain is at war. (b) For naturalized citizens It was already mentioned above that voluntary acquisition of a foreign nationality is, for a naturalized Mexican citizen, a ground for loss of Mexican nationality ex lege (37(B)(I) MEX). In Ireland sec. 19(1 )(e) IR states that: The Minister may revoke a certificate of naturalization if he is satisfied ... (e) that the person to whom it is granted has by any voluntary act other than marriage acquired another citizenship. It has to be stressed again that both the Mexican and the Irish rule conflict with the principle of art. 5(2) ECN. (c) Because of art. I of the 1963 Convention on the Reduction of Cases of Multiple Nationality Art. 1 of that Convention operates automatically and therefore prevails above the domestic nationality law of a contracting state. Although the domestic nationality law of France and Italy abolished voluntary acquisition of a foreign nationality as a ground for loss, these countries did not denounce the 1963 Convention. If a national voluntarily acquires the nationality of another contracting state to the 1963 Convention, the original nationality is lost, except in cases where the Second Protocol to the 1963 Convention allows an exception to be made (both France and Italy ratified the Convention, as did the Netherlands).45 Albania (1946), Bulgaria (1948), German Democratic Republic (1949), Hungary (1957), Yugoslavia (1945), Romania (1948), Czechoslovakia (1949). See on this issue Matjaz Tratnik, Het nationaliteitsrecht in de Oosteuropese landen, Deventer 1989, passim. In Sweden bill 1999/2000:147 which aims to abolish voluntary acquisition of a foreign nationality as a ground for loss of Swedish nationality also proposes the denunciation by Sweden of the 1963 Convention.
211
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F. Special Solutions A different approach can be observed in the Greek and Turkish nationality legislation. Voluntary acquisition of a foreign nationality is never a ground for loss ex lege of Greek or Turkish nationality, but a voluntary acquisition of a foreign nationality without previous permission of the government may be a reason for deprivation of nationality: see 20(1) GR46 and 25 (A)(a) T.47 In both countries the authorities have a certain power of discretion. Nevertheless, in Turkey, art. 25 (A)(a) is quite frequently used as a basis for deprivation of Turkish nationality.48 On the application of the corresponding Greek provision, no information was available to me. Compare also for Greece art. 14(1) and (3) GR. Every Greek citizen who acquires a foreign nationality voluntarily may apply for special permission to surrender his or her Greek nationality. A similar rule applies if a Greek citizen accepts public service in another country, if this acceptance results in the acquisition of the citizenship of that country. In exceptional cases, permission to acquire the foreign nationality may be granted after the acquisition of the foreign citizenship. In that case the loss of the Greek nationality occurs at the moment that permission is granted. Permission has to be granted by the Minister of the Interior after having requested the opinion of the council for citizenship. Permission is not granted if the applicant delays his military obligation or is being prosecuted for a crime or offense. In practice, the just mentioned permissions are very rarely granted.49 In this context, art. 23(l)(d) MOL has to be mentioned. It provides that the voluntary acquisition of the nationality of another state that has not concluded an agreement on dual citizenship with Moldova can be a ground for deprivation of Moldovan nationality if the person involved does not renounce the foreign nationality (literally: "la cetatenia unuia dintre state" (the citizenship of any of the states)) within one year. Therefore, the loss does not occur ex lege at the moment of the acquisition, but can be the consequence after a period of time. The formulation "may be revoked" See Marie-Helene de Brabandere-Marescaux/ Sophia Koukoulis-Spiliotopoulos, Grece, Nr. 93, 94, 102-104, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, looseleaf edition. See on the Turkish permission procedure, Nuray Eksi, Political Rights of Dual Nationals in Turkish Law, this volume. Compare also the paper of Christian Rumpf, Citizenship and Multiple Citizenship in Turkish Law, this volume, and Vedat R. Sevig, Turquie, Nr. 79-83. The statistics on application of Art 25(A)(a) are as follows: 1990: 1381 persons; 1991: 711 persons; 1992: 504 persons; 1993: 96 persons; 1994: 93 persons; 1995: 828 persons; 1996: 180 persons; 1997: 95 persons; 1998: 96 persons; 1999: 30 persons; 2000: 42 persons. (Information provided by Sadrettin Karahocag_l, Turkish Interior Ministry (The General Directorate of Civil Status and Nationality Issues; Head of Nationality Department) in an e-mail of 23 October 2000). The provision was used, inter alia, in the case of Merve Kavakfi, the elected member of Parliament who became controversial because she wore a head scarf to the opening of the National Assembly. She was later found to have acquired U.S. citizenship through naturalization shortly before her election. See Eksi, this volume. Until 1914, Greece provided for loss ex lege in case of voluntary acquisition of a foreign nationality. See Anastasia Grammaticaki-Alexiou, in: Nascimbene, 399; Zoe Papassiopi-Passia, The Greek Nationality Law in a Nutshell, Revue Hellenique de Droit International 1998, 511-512. 212
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("poate fi retrasa") indicates that the President of Moldova has a margin of appreciation. A very particular stance is taken by the United States. Sec. 34950 Immigration and Nationality Act (INA) provides that: (a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality (1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; (b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the enactment of this subsection under, or by virtue of, the provisions of this Act or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily. At first sight voluntary acquisition of a foreign nationality seems to be a clear ground for loss of U.S. citizenship. Until the 1960s, the former version of sec. 349(a)(l) INA was applied in that manner. But the decisions of the U.S. Supreme Court in Afroyim v. Rusk51 and Vance v. Terrazas52 held that the U.S. Constitution permits loss of citizenship (except for fraudulent or illegal nationality) only if the expatriating act was accompanied by an intent to terminate United States citizenship. The U.S. Congress amended the law thereafter to include the requirement of the intent to relinquish U.S. nationality. This requirement applies to all the expatriating acts listed in sec. 349 (like foreign military service or taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof). 53 G. Some Difficulties In those countries where voluntary acquisition can be a ground for loss of the nationality, it has to be determined precisely what is "voluntary." In cases where the 8 U.S.C. § 1481. 387 U.S. 253 (1967). 444 U.S. 252 (1980). See Alfred del Rey, Jr., Etats-Unis d'Amerique, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, looseleaf edition, Nr. 106, 108, 109. See T. Alexander Aleinikoff, Theories of Loss of Citizenship, Michigan Law Review 1986 (vol. 84), 1471-1503. 213
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nationality involved was acquired without any application and without any possibility to avoid the acquisition, the provisions in question certainly do not apply. In cases of obvious coercion they also do not apply. But are the provisions applicable in cases where a national acquired another nationality, because he was more or less forced to apply for the foreign nationality because of political or economic circumstances? The answer is yes in, for example, Belgium, Germany, and the Netherlands, but is no in Spain. A related question is whether voluntary "acquisition" also covers cases where the foreign nationality is acquired ex lege but could be rejected. In the Netherlands the answer is affirmative;54 in some other countries like Austria,55 Belgium,56 and Germany,57 the answer is negative. Again, slightly different are cases where the nationality is acquired by accepting a public office in another country without the possibility to avoid this acquisition (for example by accepting an appointment as professor at an Austrian university (see art. 25(1) A)). The Netherlands nowadays does not consider such acquisition as voluntary, but in the past another interpretation was defended and applied by the Ministry of Justice.58 It has to be mentioned in this context that the Scandinavian countries have a special provision dealing with this type of acquisition (e.g., art. 7 DK) and thereby obviously show that in their opinion this type of acquisition is not covered by their general provision on loss of their nationality by voluntary acquisition of a foreign nationality. Austria also considers this type of acquisition of a foreign nationality as not voluntary.59 H. Trends Studying the nationality legislation of the different states mentioned before, one can observe a certain tendency to abolish voluntary acquisition as a ground for loss: UK (1949), FR (1973), Portugal (1981), Italy (1992), Sweden (proposal 2000). These countries accept that a person may have such close ties with more than one country that the possession of more than one nationality is justified. Because of this acceptance of multiple nationality, the question arises whether the voluntary acquisition of a foreign nationality always indicates that the genuine link with the state of one's Compare in this context art. 6 Ley de nacionalidad mex.: "un acto juridico para obtenerla o conservarla" (An act to acquire or to keep a foreign nationality) and art. 25 (7) L. Zeyringer, Nr. 73. Charles-Louis Closset, Belgique, Nr. 149, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, looseleaf edition. In the same Nr., Closset underscores that the other nationality has to be real ("veritable") and not only the grant of a restricted amount of rights (such as for example, British protected persons or British subjects). Allgemeine Verwaltungsvorschrift zum Staatsangehorigkeitsrecht of 18 October 2000, Nr. 25.1.3. See, against the previous interpretation, Gerard-Rene de Groot, Wijziging van het Oostenrijkse nationaliteitsrecht, Personeel Statuut 1984, 18-27. Zeyringer, Nr. 73, with reference to Oberster Gerichtshof 29 October 1987, OJZ 1988, 519-521. 214
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original nationality ceases immediately.60 In the end, the countries involved answered this question in the negative. The view of these countries is acceptable. But one must stress that it must be compensated by the possibility, given to an individual who acquires another nationality, to renounce his old nationality. Otherwise one could be confronted with cases of perpetual allegiance, which conflicts with art. 15 of the Universal Declaration of Human Rights (see below par. IX( A) ff. for further comments on renunciation of nationality). We saw furthermore that some countries did not abolish voluntary acquisition as a general ground for loss of their nationality, but introduced (or are introducing) exceptions to the main rule. An example is the bill pending in parliament in the Netherlands proposing exceptions inspired by the 1993 Protocol to the 1963 Convention. The proposal pending in the Spanish parliament to add the Member States of the European Union to the list of countries whose nationality can be acquired without losing Spanish nationality also has to be mentioned in this context. Another example is the fact that after 1 January 2000, Germany will give consent to retain German nationality in case of voluntary acquisition of a foreign nationality in more cases than in the past. Last but not least, a certain tendency to interpret "voluntary acquisition" very strictly can be observed. The decisions of the courts of the United States and of Mexico are remarkable in this respect. But one can refer as well to a surprising interpretation of art. 24(2) S: Spanish nationality is lost after a period of three years from the acquisition of the foreign nationality, but no loss of Spanish nationality happens if Spanish nationality is still used.61
II. REVOCATION OF NATURALIZATION DECREE OR OF ACQUISITION BY DECLARATION OF OPTION BECAUSE OF FRAUD, FALSE INFORMATION, OR CONCEALMENT OF ANY MATERIAL FACT ATTRIBUTABLE TO THE APPLICANT A. General Remarks: Treaties Art. 7(1)(b) ECN provides for the deprivation of nationality by revocation of a naturalization decree or of an acquisition by declaration of option because of fraud, false information, or concealment of any material fact attributable to the naturalized national, even if the consequence would be statelessness (see art. 7(3) ECN).
Compare my suggestion to provide that voluntary acquisition should be maintained as a ground for loss of nationality, but a declaration of retention should be possible, which has to be renewed at least every 10 years. See Gerard-Rene de Groot, Staatsangehorigkeitsrecht, 284-286. See Jose Carlos Fernandez Rozas/ Aurelia Alvarez Rodriguez, Le droit espagnol de la nationalite, in Bruno Nascimbene (ed.), Nationality Laws in the European Union, Milano 1996, 234, 235. Compare also the very remarkable exception made on this ground for loss before 1990; no loss occurred in case of an acquisition for reasons of emigration ("por razon de emigracion"). 215
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A similar provision could already be found in art. 8 of the 1961 Convention on the Reduction of Statelessness: 1. A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless. 2. Notwithstanding the provisions of paragraph 1 of this Article, a person may be deprived of the nationality of a Contracting State: b. ... where the nationality has been obtained by misrepresentation or fraud. B. Fraud, False Information, or Concealment of any Material Fact Several countries expressly provide in their nationality legislation that fraud or concealment in respect of the acquisition of nationality may be a reason for revocation of the acquisition. An example is sec. 40(1) UK, which applies to any British citizen who became a British citizen by registration or by naturalization: Subject to the provisions of this section, the Secretary of State may by order deprive any British citizen to whom this subsection applies of his British citizenship if the Secretary of State is satisfied that the registration or certificate of naturalisation by virtue of which he is such a citizen was obtained by means of fraud, false representation or the concealment of any material fact. Sec. 40 contains precise procedural rules which have to be observed when the Secretary of State wants to use the possibility of subsection 1. There is an appeal to a committee of inquiry. Sec. 40(1) has only rarely been used:62 since 1951 only 10 persons have been deprived of citizenship and in only two cases on the ground of false representation. No one has been deprived of citizenship under this section since 1973.63 What is remarkable is that persons who told significant lies as to their identity are deemed never to have been granted certificates of naturalization at all. Therefore their possession of British nationality is revoked without paying attention to the formalities of sec. 40.64 A very similar provision can be found in Ireland (19(1)): The Minister [for Justice] may revoke a certificate of naturalisation if he is satisfied (a) that the issue of the certificate was procured by fraud, misrepresentation, Nicholas Blake, British Nationality Law, in: Bruno Nascimbene (ed.), Nationality Laws in the European Union, Milano 1996, 708. Information given by Andrew Hirst, Police Section of the Immigration and Nationality Directorate of the Home Office in a letter of 7 September 2000. See Nicholas Blake, in Nascimbene, 706, with reference to Naheem Ejaz v. Secretary of State 3 December 1993 CA; R. v. Secretary of State ex p. Parvaz Ahktar, 1981 QB 46 CA.
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whether innocent or fraudulent, or concealment of material facts or circumstances, ...65 See also 17(2) IRL: If any person, for the purposes of or in relation to an application for a certificate of naturalisation, gives or makes to the Minister any statement or information which is to his knowledge false or misleading in any material respect, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding five hundred pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and imprisonment. Comparable rules can be found in several other jurisdictions. In France the subdirection of naturalization investigates about 300 suspect naturalization files each year. For a withdrawal of nationality the consent of the Council of State (Conseil d'Etat) is required. In 1998 only 29 files were submitted to the Council of State, and the Council consented to withdrawal in 16 cases. The number of withdrawals is decreasing over the last few years. In 1996, 51 withdrawals took place and in 1997 46 cases.66 In Luxembourg the public prosecutor can initiate a procedure leading to the withdrawal of nationality if it was acquired by false information, fraud, or concealment of important facts ("par de fausses affirmations, par fraude ou par dissimulation de faits importants") (27(a) L).67 In Moldova art. 23(l)(a) allows the deprivation of nationality because of the fact that Moldovan nationality was acquired by fraud, false information, or concealment of any relevant fact if this is proved by the court. The new Polish bill on nationality regulates the revocation of a naturalization decree (and other decisions concerning the acquisition of Polish nationality) in art. 10. A revocation is possible if 1) documents, on the basis of which the crucial factual assessment took place, had been forged, or 2) the decision resulted from a criminal act, or 3) new factual circumstances or new evidence, which existed at the time the decision was taken, became available but were not known to the authority that issued the decision. If 10 years have passed since the day on which the decision was issued, a revocation or annulment of the decision is no longer possible. In Spain it is possible that the nationality is withdrawn by a sentence which declares that the person involved has obtained Spanish nationality by means of false representation, concealment of any fact, or fraud. This withdrawal does not influence the rights of third persons acquired in good faith. The nullity procedure is only Philippe de Patoul/ Tony O'Connor/ John G. Fish, Irlande, Nr. 74, in: in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, looseleaf edition, mention in 1984, that since 1956 no revocation of a naturalization decree has taken place. Furthermore, these authors stress that it is very dubious whether this ground for loss is in conformity with the Irish constitution. Information received from Paul Lagarde, mail of 14 January 2001. Statistical data on the application of this provision are not available, but the deprivation of Luxembourg nationality on this ground is very rare. Information provided by M. A. Ketter, Ministry of Justice in a letter of 28 September 2000.
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possible within 15 years of the acquisition of Spanish nationality (25(2) SP). In the Spanish legal literature it is stressed that fraud, etc. is not a ground for loss, but a ground for nullity of the acquisition.68 In Switzerland an annulment of a naturalization because of false information or concealment of relevant facts ("falsche Angaben oder Verheimlichung erheblicher Tatsachen") is exclusively possible within five years of the acquisition (41(1) SWIT).69 This provision has its roots in art. 2 of the Decree (BundesratsbeschluB) of 11 November 1941. According to that Decree, the revocation had to take place within 10 years from the acquisition and was also possible because of an obvious un-Swiss attitude ("offenkundig unschweizerische Gesinnung"). Also according to art. 24 TURK, revocation of a naturalization decree by the Council of Ministers is possible if it is discovered that during the naturalization procedure false documents were submitted or important information was concealed. A revocation is no longer possible more than five years after the naturalization of the person involved. This provision is rarely used.70 A very detailed regulation of revocation of naturalization because of concealment of a material fact or willful misrepresentation, without any limitation in time, can be found in the United States in sec. 340 INA:71 (a) It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively. ... (b) The party to whom was granted the naturalization alleged to have been illegally procured or procured by concealment of a material fact or by willful misrepresentation shall, in any such proceedings under subsection (a) of this section, have sixty days' personal notice, unless waived by such party, in which See for example Aurelia Alvarez Rodriguez, Guia de la nacionalidad espanola, 2nd edition, Madrid 1996, 92, 93, note 146. According to Roland Scharer, Swiss Nationality Section, mail of 15 January 2001, art. 41 is applied in about 30 cases per year. He mentions also, that these revocations mostly concern facilitated naturalizations on the basis of marriage with a Swiss citizen. The revocations occur because of false declarations on the effectiveness of a marital community, or because of bigamous marriages. According to Sadrettin Karahocagyl, Turkish Interior Ministry (The General Directorate of Civil Status and Nationality Issues; Head of Nationality Department) in an e-mail of 23 October 2000 there was just one incident in 1999. 8 U.S.C. § 1451. 218
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to make answer to the petition of the United States; and if such naturalized person be absent from the United States or from the judicial district in which such person last had his residence, such notice shall be given either by personal service upon him or by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought. (d) Any person who claims United States citizenship through the naturalization of a parent or spouse in whose case there is a revocation and setting aside of the order admitting such parent or spouse to citizenship under the provisions of subsection (a) of this section on the ground that the order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation shall be deemed to have lost and to lose his citizenship and any right or privilege of citizenship which he may have, now has, or may hereafter acquire under and by virtue of such naturalization of such parent or spouse, regardless of whether such person is residing within or without the United States at the time of the revocation and setting aside of the order admitting such parent or spouse to citizenship. ... (e) When a person shall be convicted under section 1425 of title 18 of the United States Code of knowingly procuring naturalization in violation of law, the court in which such conviction is had shall thereupon revoke, set aside, and declare void the final order admitting such person to citizenship, and shall declare the certificate of naturalization of such person to be canceled. ... (g) The provisions of this section shall apply not only to any naturalization granted and to certificates of naturalization and citizenship issued under the provisions of this title, but to any naturalization heretofore granted by any court, and to all certificates of naturalization and citizenship which may have been issued heretofore by any court or by the Commissioner based upon naturalization granted by any court, or by a designated representative of the Commissioner under the provisions of section 702 of the Nationality Act of 1940, as amended, or by such designated representative under any other Act. (h) Nothing contained in this section shall be regarded as limiting, denying, or restricting the power of the Attorney General to correct, reopen, alter, modify, or vacate an order naturalizing the person.72
Cf. as well sec. 329(c) INA: "Citizenship granted pursuant to this section may be revoked in accordance with section 340 of this title if at any time subsequent to naturalization the person is separated from the military, air, or naval forces under other than honorable conditions, and such ground for revocation shall be in addition to any other provided by law. The fact that the naturalized person was separated from the service under other than honorable conditions shall be proved by a duly authenticated certification from the executive department under which the person was serving at the time of separation.".
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In Johannessen v. United States (1912)73 the Supreme Court decided that the revocation of a naturalization decree because of fraud does not constitute a cruel or excessive measure which is forbidden by the eighth amendment to the Constitution.74 In Mexico art. 26 Ley de Nacionalidad of 23 January 1998 provides for the possibility to declare the nullity of a naturalization decree, if this decree was made but not all conditions for a naturalization were fulfilled, or if it was made under violation of the Nationality Act ("cuando se hubiere expedido sin cumplir con requisitos o con violacion a esta ley"). The person involved must be given the opportunity to voice his opinion. The declaration of revocation has to mention the moment from which the naturalization is void ("la fecha a partir de la cual dicha carta sera nula"). Rights of third persons acquired in good faith are protected. Art. 16 of the Canadian bill C-1675 provides for the possibility of a revocation of a naturalization decree, If the Governor in Council is, on the report of the Minister, satisfied that a person has obtained. ... citizenship by false representation or fraud or knowingly concealing material circumstances. Procedural rules to be observed are given in secs. 16(2) through 18. In the Netherlands a ground for loss corresponding with the provision of art. 7(b) ECN is proposed by bill 25 891 (R 1609) in art. 14: the acquisition of Netherlands nationality by naturalization or declaration of option can be annulled because of false information, fraud or concealment of any relevant fact by the person involved. The annulment is possible only within a period of 12 years after the acquisition of Netherlands nationality, with the exception of cases where the person involved was sentenced for crimes of war, torture or genocide; in the latter cases revocation is possible without any time limit. Art. 14(4) allows this deprivation even if the consequence would be statelessness.76 It is remarkable that several countries do not provide expressly in their nationality act for the possibility of revocation of a nationality decree if fraud etc. is discovered. In some countries, nevertheless, revocation is possible in such cases, based on the application of provisions of general administrative law. That is, for example, the case 225 U.S. 227; 32 S.Ct. 613. See Alfred del Rey, Nr. 107; furthermore Murad Ferid/Dieter Blumenwitz, Das Staatsangehorigkeitsrecht der Vereinigten Staaten von Nordamerika, Frankfurt am Main 175, 101-109. It is remarkable that the state makes not only behavior in the past, but also behavior after naturalization the basis of a revocation, under presumptions set forth in paragraphs (a) and (c), which are based on joining communist or totalitarian organizations or refusing to testify before congressional hearings on subversive activities. These presumptions, however, are relics of the early Cold War years, have not been used for decades, and are of doubtful constitutionality. Compare sec. 10 Citizenship Act. Critical remarks on this proposal: Gerard-Rene de Groot, Verder op weg naar een hernieuwd nationaliteitsrecht, Bespreking wijzigingsnota Rijkswet Nederlanderschap, Migrantenrecht 1999, 13-22. 220
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in Germany, where revocation of an administrative act because of fraud is possible ("Rucknahme einer begunstigenden Verwaltungsakt") based on art. 48 VwVfG.77 The authorities have to undertake steps in order to revoke the naturalization within one year after they discovered the fraud (art. 48(4) VwVfG). In the legal literature it is argued that a revocation can no longer take place five years after the naturalization,78 but this opinion has been rejected by several courts.79 Whether the application for naturalization under a false name can be a ground for revocation of the naturalization decree depends on whether, because of the false identity, other requirements for naturalization are also not fulfilled.80 This possibility to revoke a naturalization decree is not often used.81 In Austria it is possible to reopen the naturalization procedure on the basis of par. 69(1) Allgemeines Verwaltungsverfahrensgesetz82 in case of fraud, new facts, new pieces of evidence, or new decisions on relevant preliminary questions. In case of fraud the revocation of a naturalization decree is possible even if statelessness would be the consequence. For the other cases par. 24 A determines that reopening is only possible if the revocation would not cause statelessness.83 In some countries difficulties may arise in respect of revocation, because these countries naturalize foreigners by an Act of Parliament (Belgium, Denmark, and until 1 October 1998, Iceland).84 Nevertheless, Belgian nationality was revoked in a couple of cases where fraud was discovered. The fraud was classified as a serious neglect of their obligations as a Belgian citizen (art. 23(1) B), therefore as serious prejudicial behavior.85 A special provision for the possibility to revoke a naturalization because of fraud is lacking.86 Hailbronner/ Renner/ Kreuzer, Comment 36, 37 on art. 16 GG. See furthermore Sturm, Nr. 109 and M. von Kluchtzner, Probleme der Rucknahme einer Einburgerung, in: Op de grenzen van het Nederlanderschap (Feestbundel Zilverentant), 's Gravenhage 1998, 127-131. Makarov/ von Mangoldt, Kommentar, art. 16 RuStAG, Nr. 33. Compare par. 24 StAngRegG. VGH Mannheim 9 May 1990, NVwZ 1990, 1198; OVG Nordrhein-Westfalen 2 September 1996, StAZ 1997, 137; cf. BVerwG 13 April 1989, NVwZ -RR 1990, 220. Von Kluchtzner, 131. Von Kluchtzner refers to two cases where an applicant for naturalization did not inform the authorities that he was married to two women simultaneously. Bundesgesetzblatt 1991, 51. Information given by Peter Mak, Bundesministerium fur Inneres in a letter of 1 September 2000. Compare the information of Jon Thors, Doms- og Kirkjumalar Aduneytid (Ministry of Justice and Ecclesiastical Affairs), Reykjavik in a letter of 17 November 2000 who underscored, that until 1 October 1998 naturalization was granted in Iceland only by Act of Parliament and it was considered that such a naturalization cannot be revoked except by an act of Parliament. Thors mentioned that there has never been a case where it has been considered necessary to recall a naturalization. Since October 1998 naturalization is now mostly done by the administration in accordance with art. 5a of the Icelandic Nationality Act; thus, the question to revoke the naturalization because of fraud could now arise. But until now no such case has come up. Closset, Nr. 161. See infra par. IV(B). Information provided by Jan Van De Velde, Advisor General, Ministry of Foreign Affairs, Brussels, in a letter of 13 December 2000. 221
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It may happen that a naturalization is acquired because of bribery of officials. Only the Mexican Provision is formulated on a way which undoubtely also covers this type of case. In all other countries bribery has to be classified as fraud.87 C. Failure to Divest the Former Nationality In at least two countries, it is possible to revoke the naturalization because of the fact that a naturalized citizen did not divest himself of his old nationality.88 In Austria, par. 34(1) states that a national shall be deprived of his Austrian nationality if (1) he acquired the nationality more than two years ago either through naturalization or extension of the naturalization; (2) he did not acquire his nationality because of special services in the field of science, economy, arts or sports in the interest of Austria;89 (3) on the day of naturalization (or extension of naturalization) he was not a refugee under the Convention of 1951 or the Protocol of 1967 on the status of refugees; and (4) despite the acquisition of Austrian nationality, retained a foreign nationality for reasons under his responsibility. At least six months prior to the intended deprivation of nationality, the national involved has to be informed about the intended application of par. 34(1) A. After expiry of this period the deprivation shall be decreed without undue delay. After six years following the granting (or extension of granting), deprivation is no longer admissible.90 A similar provision is art. 15(d) NL, according to which a person of full age91 shall lose his Netherlands nationality by revocation of the decree granting Netherlands nationality if the person concerned fails, after his naturalization, to make every effort to divest himself of his original nationality. It is in my opinion dubious whether these grounds for revocation are covered by art. 7(b) ECN. Not fulfilling a promise cannot be classified as fraud, false information, or concealment of any relevant fact. Nevertheless, the explanatory memorandum on the ECN gives, as an example of the application of the present provision, the case that "a person acquires the nationality of the State Party on condition that the nationality of origin would subsequently be renounced and the person voluntarily did not do so." According to the report, the state party would be entitled to provide for the loss of its nationality. I do not agree with this example for the reasons already mentioned. If the drafters had wanted to allow such a ground for loss, they should
See the cases reported in the (Belgian) Gazet van Antwerpen of 5 January 2001. Compare the paper of Christian Rumpf on the Turkish/German situation, this volume. See par. 10(4), 16(2) and 17(4) A. Statistics on the application of this provision are not available; information of Peter Mak, Bundesministerium fur Inneres in a letter of 1 September 2000. I.e., a person who has attained the age of eighteen or has married before attaining that age; see art. 1 NL.
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have included it in the text of the treaty itself.92 Mentioning it in the explanatory report, when it appears inconsistent with the plain wording of the text, is not enough. The view that revocation of naturalization because of not renouncing the previous nationality is not covered by art. 7(b) ECN, is underscored by the fact that Austria made the following reservation when it ratified the ECN. Such a reservation would be superfluous if Austria accepted the view manifested in the explanatory report: Austria declares to retain the right to deprive a national of its nationality if: 1. he acquired the nationality more than two years ago either through naturalization or the extension of naturalization under the Law on Nationality of 1985 as amended; 2. neither Section 10, paragraph 4, nor Section 16, paragraph 2, nor Section 17, paragraph 4, of the Law on Nationality 1985 as amended were applied; 3. on the day of naturalization (extension of naturalization) he was not a refugee as defined in the Convention of 28 July 1951 of the Protocol relating to the legal Status of Refugees of 31 January 1967, and 4. despite the acquisition of its nationality he has retained a foreign nationality for reasons he is accountable for.' This reservation follows precisely the wording of par. 34(1) of the Austrian Nationality Act. It is remarkable that a ground for loss corresponding with 34(1) A and 15(d) NL cannot be found in the German legislation. Obviously the opinion there is that this would violate art. 16 of the Basic Law, which forbids deprivation of nationality.93 D. Revocation in Other Cases A considerable number of countries provide that in some other cases certainly not covered by art. 7(b) a revocation of a naturalization decree is possible (23 B, 40 GB, 19 IRL, 27 L, 25 SP, 37(B)(1) MEX, 340 USA). One should realize that in some cases the reasons for revocation may be covered by one of the other categories of art. 7 ECN, in particular by 7(c) and (d), i.e., voluntary foreign military service or behavior seriously prejudicial to the vital interests of the state involved. Therefore these grounds for loss of nationality by revocation of a naturalization decree will be elaborated upon in par. 3 and 4. Nevertheless, it must be stressed now that, because of art. 5(2) ECN, it is certainly not allowed to restrict these other grounds for loss to naturalized citizens. In a previous draft of the explanatory reports "bigamy" was also mentioned as an example of the present provision. This example was later deleted. Compare Christine Kreuzer, StAZ 1997, 128. Under certain circumstances Germany applies the sanction of a financial penalty if a naturalized citizen does not renounce his previous nationality, although he took this obligation during the naturalization procedure. See Allgemeine Verwaltungsvorschrift zum Staatsangehorigkeitsrecht of 18 October 2000, par. 8.1.2.6.2.
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E. No Revocation Because of Fraud In some countries revocation of a naturalization decree is never possible, even in cases where it was later discovered that the naturalization was acquired by fraud, misrepresentation, or concealment of relevant facts. This is, for example, the case in Sweden.94 F. Statelessness The third and final paragraph of art. 7 of the Convention provides that, in principle, loss of a nationality may not cause Statelessness. The only exception allowed to this principle is deprivation of nationality because of fraudulent conduct, false information, or concealment of any material fact during the naturalization or option procedure. But even here, Recommendation 99(18) of the Council of Europe states in Part C sub c: "In order to avoid, as far as possible, situations of Statelessness, a State should not necessarily deprive of its nationality persons who have acquired its nationality by fraudulent conduct, false information or concealment of any relevant fact. To this effect, the gravity of the facts, as well as other relevant circumstances, such as the genuine and effective link of these persons with the state concerned, should be taken into account." At the moment, loss of Netherlands nationality can never occur if this causes Statelessness (art. 14 paragraph 2 Nationality Act). But as already mentioned, bill 25 891 (R 1609) proposes to introduce the possibility to deprive a person of nationality if it was acquired by means of fraud even if Statelessness is caused. In other States where revocation of a naturalization decree is possible in case of fraud, Statelessness is accepted as well. G. Some Difficulties The first difficulty is whether naturalization of a person under a false name is valid and can, under certain circumstances, be revoked. Of course, it is obvious that in such a case it is almost always the naturalized person himself that provided false information as to his identity. In the Netherlands it was decided in several court decisions that the naturalization of a person under a false name is void in respect of the person who applied under this false name: it was not he, but another who was naturalized.95 A similar argument is followed by the authorities of the United Kingdom, where in such cases, the procedure of sec. 40 is not followed. It is remarkable that in Finland the authorities came to the opposite conclusion: the Information from Bo Lundberg, Migrationsverket, in a letter 6 September 2000. Court 's Gravenhage 4 January 1989 (file 88/5641; summary in loose-leaf edition, Nationaliteitswetgeving, Jur. WNI, art. 5, p. 5). Against this argumentation Gerard-Rene de Groot, Comment 1 before art. 14 Netherlands Nationality Act, in: Personen- en Familierecht, loose-leaf edition, Kluwer Deventer. 224
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naturalization is regarded as valid.96 Also in Germany the false identity as such does not make the naturalization decree revocable.97 Of course it is not easy to determine what precisely are "relevant facts" that might support a finding of concealment. Importantly, attention should be paid to Recommendation 99(18), mentioned above where it is stressed that attention has to be paid to the gravity of the facts. Another related question is whether innocent false representation can allow deprivation as well. In some countries the answer is affirmative. H. Trends A general trend manifested by the European Convention on Nationality is the restriction of revocation of a naturalization decree to cases of fraud, misrepresentation, and concealment of relevant facts. Other grounds for loss should apply equally to citizens of origin and other citizens (see art. 7 ECN in combination with art. 5(2) ECN). Furthermore it can be observed that some countries limit the period within which revocation can take place (Switzerland: 5 years; Austria: 6 years; Netherlands (proposed bill) 12 years (with exceptions); Spain: 15 years). The ECN does not prescribe this limitation, but Recommendation 99(18) underscores that in applying this ground for loss, attention has to be paid to the genuine and effective link of the persons involved with the state concerned. If a long period has passed since the naturalization, normally such a close and genuine link exists in spite of the fraud that was committed in the past. Limiting the period within which a revocation is possible amounts to a practical implementation of the Recommendation.
III. VOLUNTARY FOREIGN MILITARY SERVICE98 A. General Remarks: Treaties Art. 7(c) ECN allows for loss of nationality because of voluntary service in a foreign military force. The explanatory memorandum on the ECN explains that it does not matter whether the person involved served in the official army of another state or not. The provision covers every voluntary military service in any foreign military force irrespective of whether it is part of the armed forces of a foreign state. A corresponding provision cannot be found in the 1961 Convention on the Reduction of Statelessness. However, a certain parallel can be seen in art. 8(3): 96 97 98
Allan Rozas/ Markku Suksi, in Bruno Nascimbene, Finland, 293, note 56, with reference to an opinion delivered by the Chancellor of Justice on 9 July 1987 (Nr. 2855). Von Kluchtzer, 131. Gerard-Rene de Groot, Staatsangehorigkeitsrecht im Wandel, o.c., 298-300; compare as well the detailed paper of Stephen Legomsky, Dual Nationality and Military Service: Strategy Number Two, this volume.
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Notwithstanding the provisions of paragraph 1 of this Article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time: (a) that, inconsistently with his duty of loyalty to the Contracting State, the person (i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or (ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State; (b) that the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State. But in that case the state involved has to observe art. 8(4) as well: A Contracting State shall not exercise a power of deprivation permitted by paragraphs 2 or 3 of this Article except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body. Of course, according to art. 7 ECN, voluntary military service can never cause statelessness. In this respect, art. 7(c) is in accordance with the 1961 Convention. On the other hand a procedural guarantee such as art. 8(4) of the 1961 Convention would be quite desirable in respect of this ground for loss, in particular if loss is also possible in the case of military service in a military force that is not a part of the armed forces of another state. It is not difficult to imagine that in that case many interpretive difficulties may arise. B. Loss ex lege In some states ex lege loss of nationality is provided for in the case of voluntary foreign military service, but in all cases studied, the provisions involved deal with voluntary military service of another state, not with service in non-state military forces. An example is par. 32 A, which provides that a national who voluntarily enters the military service of a foreign country shall lose Austrian nationality. If the person involved is still a minor at the moment when he enters the foreign military service, the previous consent of his legal representative is required. If the legal representative is not a parent of the minor involved, previous permission of the court (more precisely: "Vormundschafts- oder Pflegschaftsgericht") is necessary (see par. 27(2))." 99
226
Regrettably, no statistical data are available on the application of par. 32; information given by Peter Mak, Bundesministerium fur Inneres, in a letter of 1 September 2000. Corresponding older Austrian provisions were par. 10 Act 1925 and par. 9 Act 1945/1949.
Loss of Nationality: A Critical Inventory
If a dual national fulfills his military obligations in his other state he does not lose Austrian nationality, unless he voluntarily commits acts which go beyond normal mandatory military service.100 Until 1985, Netherlands nationality law contained voluntary foreign military service (or state service) without the permission101 of the King of the Netherlands as a ground for ex lege loss of Netherlands nationality (art. 7(4) Nationality Act 1892).102 But the Netherlands had very bad experiences with this ground for loss during the 1930s and 1940s. Several persons who went into German military service during the period of the Second World War rejected the jurisdiction of the Netherlands in respect of crimes possibly committed by them during that period, because - if they had committed the crimes involved - they would have committed them as non-Netherlands citizens in a foreign country. These jurisdiction problems were reasons to abolish this ground for loss. Nevertheless, it is likely that foreign military service as a ground for loss will be reintroduced in the near future. Bill 25 891, as amended in the Second Chamber of Parliament, proposes to add to art. 15 a proviso that Netherlands nationality will be lost (ex lege) if a national voluntarily enters into the military service of a state involved in an armed conflict with the Kingdom or with an alliance of which the Kingdom is a member.103 The amendment involved is a reaction to the fact that some (naturalized) Netherlands nationals participated as soldiers in the armed conflicts in former Yugoslavia. Dual nationals with German nationality also participated in the armed conflict in Yugoslavia. Therefore, a similar provision was added on 1 January 2000 to the German nationality act (28 G): a German who voluntarily enters into the armed forces104 of another State ("in die Streitkrafte oder einen vergleichbaren bewaffneten Verband eines auslandischen Staates") whose nationality he also possesses, loses German nationality if he entered the foreign military service without the consent of the German authorities in accordance with par. 8 of the German statute on military service ("ohne eine Zustimmung nach par. 8 des Wehrpflichtgesetzes"). In the past, Germany had corresponding provisions (par. 22 Act 1870; par. 28 Act 1913), but it 100 101
102 103
104
Zeyringer, Nr. 84. It has to be stressed that this permission also could (and even nowadays still can) be given after a person entered the foreign military service. Corresponding older provisions were art. 9(2) Civil Code 1838 and art. 10(2) Act 1850. The Dutch text reads as follows: "(e) indien hij zich vrijwillig in vreemde krijgsdienst begeeft van een staat die betrokken is bij gevechtshandelingen tegen het Koninkrijk dan wel tegen een bondgenootschap waarvan het Koninkrijk lid is." (amendment Nr. 30 of 17 February 2000). In amendment Nr. 15 of 15 February 2000 a more general formulation was chosen "zich in vreemde krijgsdienst begeeft of zich aansluit bij een vreemde groepering," which would also include military service of a non-state entity. Because of critical remarks of the Ministry of Justice on difficulties with the application of the proposed ground of loss in concrete cases, it was decided to replace this amendment by the later accepted version, which only regards military service of a foreign state. The Allgemeine Verwaltungsvorschrift zum Staatsangehorigkeitsrecht of 18 October 2000 gives as examples a special unit of the police ("Polizeisondertruppe") or a paramilitary state organization ("paramilitarische staatliche Organization"). 227
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was generally accepted that this ground for loss was a forbidden deprivation of nationality in the sense of art. 16(1) of the German Constitution.105 A difference between the old and the new provision is that under par. 28 Act 1913 making foreign military service a ground for deprivation, the German authorities had a margin of appreciation.106 In the new statute the loss occurs ex lege and seems therefore not to give a margin of appreciation to the German authorities. Nevertheless, the German authorities still have the possibility to avoid the loss involved by granting the consent under par. 8 of the German statute on military service. It has to be expected and hoped that the new provision shall be challenged very soon in regard of its accordance with art. 16(1) of the German Constitution. In respect of voluntary military service, Austria made a surprising reservation as regards art. 7(c) ECN on the occasion of its ratification of the ECN: "Austria declares to retain the right to deprive a national of its nationality, if such person voluntarily enters the military service of a foreign State." The reservation follows the wording of par. 32 of the Austrian Nationality Act, but seems to me to be superfluous. The provision in art. 7(c) allows for loss of nationality because of foreign military service ex lege or on the initiative of a State in a particular case. The Austrian ground for loss is covered by this provision. Did Austria want to indicate that in not all cases of voluntary military service deprivation of nationality will take place, because minors only lose their nationality if their legal representative has expressed his consent (see par. 27(2) A in combination with par. 32 A)? Or did Austria want to express that only military service for a foreign state and not the service in a nonstate military force results in deprivation? Because of the fact that art. 7 of the Convention allows the deprivation of nationality only in the cases mentioned and does not oblige a state party to deprive a national of nationality in those cases, the Austrian reservation can be withdrawn. C. Deprivation Because of Foreign Military Service Exclusively in Moldova, foreign military service is not mentioned as a ground for loss of nationality ex lege but as a ground for deprivation (art. 23(1 )(b)). The article provides that the nationality "may be" ("poate fi") revoked in such a case. Therefore the president of Moldova obviously has a margin of appreciation. The Moldovan regulation is in conformity with art. 7(c) ECN. 105
106
228
So for example Franz Massfeller, Deutsches Staatsangehorigkeitsrecht, 2nd edition, Frankfurt am Main/ Berlin 1955, 65: "par. 28 steht im Widerspruch zu art. 16 Abs. 1 Satz 1 GG und ist deshalb gegenstandlos geworden. According to Massfeller, 65 par. 28 violated also art. 16(1) Constitution in cases where the national involved also possesses the nationality of the state in which military service he undertook: "Dies gilt auch fur den Fall, in dem der Betroffene neben der deutschen Staatsangehorigkeit eine fremde Staatsangehorigkeit besitzt (z.B. die des Dienstherrn), durch den Entzug der deutschen Staatsangehorigkeit also nicht staatenlos wurde;. ...".
Loss of Nationality: A Critical Inventory D. Foreign Service
A considerable number of countries provide for the possible loss of nationality in cases of foreign service, without making a distinction between military service and civil service. In France art. 23-8 F107 makes it possible to deprive a French national of his nationality if he does not resign the service in a foreign army or foreign public service or service of an international organization in which France does not participate ("un emploi dans une armee ou un service public etranger ou dans une organization Internationale dont la France ne fait pas partie"). The same applies for general support of a foreign state or international organization ("ou plus generalement leur apportant son concours"), if the French government requests the person to desist. The intended deprivation has to be communicated to the person involved and a term not shorter than 15 days and not longer than two months has to be given to stop the foreign employment. Less detailed is art. 20(1 )(b) GR,108 according to which a Greek citizen may be declared to have forfeited Greek citizenship if he accepted a public office in another country and he remains there even after an order by the Minister of the Interior to abstain from his service within a defined time limit. Compare also the provision of art. 14(1) GR, according to which a Greek citizen will lose his Greek citizenship if, after permission, he acquired a foreign citizenship by his own will or if he accepted public service in another country that results in acquisition of the citizenship of that country.109 A comparable regulation can be found in Italy, where art. 12(1) I provides that an Italian citizen shall lose his citizenship if he accepted a public office from a foreign state or a foreign public body or an international body to which Italy does not belong, or he joins a foreign army ("un impiego pubblico od una carica pubblica da uno Stato o ente pubblico estero o da un ente internazionale cui non partecipi I'ITtalia, ovvero prestando servizio militare per uno Stato esterno"), unless he obeys, within a fixed term, an order of the Italian government to abandon the office or the military service. In wartime, different rules apply (12(2) I). In that case an Italian citizen shall lose his Italian citizenship when the state of war ceases, if during the state of war against a foreign State: a) he accepted or did not abandon a public office of that foreign State; or b) he served in the army of this state without being obliged to do so.110 107
108
109
110
Paul Lagarde, in Nascimbene, 323 mentions that this provision is not applied in practice. Lagarde confirms this in an E-mail of 14 January 2001. However, he mentions that the French government sometimes (but not often) formally requests a person to stop a certain foreign employment. Anastasia Grammaticaki-Alexiou, in Nascimbene, 400; compare Marie-Helene de BrabandereMarescaux/ Sophia Koukoulis-Spiliotopoulos, Nr. 93. This permission is only very rarely given. Information provided by Zoe Papassiopi-Passia in a letter of 16 January 2001. Stefania Bariatti, Italie, Nr. 84, 85, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, loose-leaf edition, underscores that this ground for loss corresponds with art. 8(3) of the Italian nationality act of 1912, which was never applied. Furthermore, she argues that this 229
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In Spain, voluntary foreign military or civil service ("cuando entren voluntariamente al servicio de las armas o ejerzan cargo politico en un Estado extranjero") has since 1982, not been a general ground for loss ex lege, but it is such a ground exclusively for naturalized citizens ("los espanoles que no lo sean de origen"), if the government has forbidden the service involved expressly (25(1) SP). Not all foreign civil service can have this consequence, but exclusively political functions (cargo politico).111 In the United States, sec. 349 provides for loss of American citizenship in the following cases: (3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer; or (4) (A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or (7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, United States Code, or willfully performing any act in violation of section 2385 of title 18, United States Code, or violating section 2384 of said title by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction. However, in view of the previously mentioned decisions of the U.S. Supreme Court
111
230
regulation could violate art. 22 of the Italian Constitution, which forbids depriving somebody of Italian nationality for political reasons ("per motivi politici"). Nevertheless, this ground was again included in the nationality act of 1992. Obviously, the Italian legislator concluded that art. 54 of the Constitution (regarding the obligation of loyalty to the republic) prevails in this context above art. 22. See also the critical remarks of Stefania Bariatti, in Nascimbene, 484. Elisa Perez Vera/ Jose Maria Espinar Vicente, Espagne, Nr. 90, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, loose-leaf edition, underscore that this ground for loss is interpreted restrictively, although a Decree of 28 December 1967 forbids all Spaniards to go voluntarily into foreign military service. They refer to the resolution of the DGRN of 24 July 1968. See as well Jose Carlos Fernandez Rozas/ Aurelia Alvarez Rodrigues, in Nascimbene, 239, who are of the opinion that this Decree is no longer in force.
Loss of Nationality: A Critical Inventory
in Afroyim v. Rusk and Vance v. Terrazas,112 it is necessary to conclude that American citizenship will be lost only if the person involved had the intent to give up the said citizenship.113 In Mexico art. 37(C) provides for the loss of Mexican "ciudadania" inter alia because of voluntary service for a foreign government without permission of the competent Mexican authorities. However, this provision does not deal with the loss of nationality, but exclusively with the loss of citizenship rights. Art. 34 of the Constitution makes a sharp distinction between "ciudadanos" and persons who possess Mexican nationality ("los varones y mujeres que, teniendo la calidad de Mexicanos"). Furthermore, one notices the distinction between "nacionalidad" and "ciudadania" as well in the text of art. 37, where art. 37(A) and (B) speak about "podra ser privado de su nacionalidad," whereas art. 37(C) uses the words "La ciudadania mexicana se pierde." Art. 25(A)(b) TURK states that service to a foreign state in a way that conflicts with the interests of Turkey is a reason for deprivation of nationality if the person involved does not obey the order of the Turkish authorities to abandon the foreign service within a period, which has to be no less than three months. Art. 25(A)(c) TURK provides that the continuation of voluntary service of another state with which Turkey is at war is a ground for deprivation of nationality, if the Turkish authorities did not give permission to continue the service.114 In the Scandinavian countries, foreign service is a ground for loss only if the national involved acquired a foreign nationality by taking up the foreign position. An example is art. 7(2) DK, according to which Danish citizenship shall be forfeited by a person who acquires a foreign nationality by taking up a position with the public authorities of another country. It has to be stressed that acquisition of a nationality by accepting a position with a foreign state is, in contemporary nationality law, very rare. Examples are par. 25 A (acquisition of Austrian nationality by an appointment as a professor at an Austrian university), art. 21-11 F (acquisition of French nationality by entering the French military service), and art. 4(1 )(a) and (b) I (acquisition of Italian nationality by persons of Italian descent entering Italian military or state service).115 Almost identical provisions can be found in the nationality legislation of the other Scandinavian countries: 8(2) FIN, 7(2) 1C,116 7(2) N, 7(2) SW. However, in Sweden bill 2000:147 proposes to abolish this ground for loss. 112 113 114
115 116
See above footnotes 51 and 52. Alfred del Rey, Nr. 109, 110. See on both provisions the paper of Christian Rumpf, Citizenship and Multiple Citizenship in Turkish Law, this volume. There are no statistical data concerning the application of the Art 25(A)(b,c) because no incident has occurred up to now (Information provided by Sadrettin Karahocagyl, Turkish Interior Ministry (The General Directorate of Civil Status and Nationality Issues; Head of Nationality Department) in an e-mail of 23 October 2000). See also Gerard-Rene de Groot, Staatsangehorigkeitsrecht im Wandel, o.c., 213-215. Art. 7(2) IC has never been directly applied as the information received about an Icelandic national taking up another nationality does not contain information on the grounds for taking up the foreign 231
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In most countries the loss is not an ex lege loss, but occurs only after an order of the government, which makes it possible to control whether the voluntary service is indeed an indication of the intent of the person involved to give up his nationality. In Austria, a special provision of the nationality act deals with foreign civil service. Par. 33 A provides that a national in the service of a foreign country shall be deprived of nationality, unless sec. 32 already applies (i.e., loss ex lege because of voluntary military service of a foreign country), if the national, through his behavior, severely damages the interests or the reputation of the Republic.117 In order to maintain this ground for loss, Austria made the following reservation when it ratified the ECN: Austria declares to retain the right to deprive a national of its nationality, if such person, being in the service of a foreign State, conducts himself in a manner seriously prejudicial to the interests or the reputation of the Republic of Austria. E. Foreign (Military) Service as Prejudicial Behavior Some countries do not provide foreign (military) service as a ground for loss of their nationality, but include in their nationality legislation provisions which create the possibility of deprivation of nationality in case of a behavior seriously prejudicial to the state. If that is the case, it may happen that foreign (military) service is classified as such behavior. That is for example the case in Belgium118 and Luxembourg.119 F. Statelessness Voluntary civil service is not allowed by art. 7 ECN as a ground for loss. All the provisions mentioned are valid only in respect of the voluntary military service. The Spanish provision violates art. 5(2) ECN because of the discriminatory treatment of naturalized citizens. As a consequence of art. 7(3) ECN, loss of nationality because of foreign military service may not cause Statelessness. Some national provisions nevertheless do not explicitly exclude the possibility of Statelessness and are therefore not completely acceptable in view of the ECN.
117
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nationality. Information provided by Jon Thors, Doms- og Kirkjumalar Aduneytid (Ministry of Justice and Ecclesiastical Affairs), Reykjavik in a letter of 17 November 2000. Regrettably no statistical data are available on the application of this provision; information from Peter Mak, Bundesministerium fur Inners, in a letter of 1 September 2000. Corresponding provisions were in the past, par. 10 Act 1925 and par. 9 Act 1945/1949. See a letter with comparative remarks on the consequences of foreign paramilitary service by M. Job Cohen to the parliament of the Netherlands d.d. 8 September 2000 (see bill 25 891, Nr. 37). Until 1909, Belgium had a more specific provision: art. 17(2) and 22 Civil Code. Fernand Schockweiler, Luxembourg, Nr. 85, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, loose-leaf edition, with reference to Decl. min. just., CR 1938/39, 1075 ("service militaire ou paramilitaire"); See also the same author, in Nascimbene, 519.
Loss of Nationality: A Critical Inventory
G.
Difficulties
A first difficulty in respect of the interpretation of various cited provisions is: what precisely is a military force of a foreign state? This is particularly difficult in respect of States with only one political party participating in the government if this party has its own quasi-military force, such as in Nazi Germany the "SS" of the National Socialist Party. A second difficult point is determining whether somebody voluntarily entered into foreign service. Can one still conclude that entering the service happened voluntarily if the alternative would be to leave the country involved, although one was already living there for a very long period?120 A further question is whether the provisions involved also apply to minors. The Austrian regulation answers this question in principle in the negative. In the Netherlands the old provision of art. 7(4) was never applied to minors, because this would conflict with the general protection of minors against their own imprudent decisions. In respect of several cited provisions the answer is not clear. For the Member States of the European Union, it must finally be stressed that loss of nationality because of service to another Member State could violate European Union law under certain circumstances if the foreign service does not imply, as such, the exercise of political power or sovereignty rights.121 H. Trends In spite of the formulation of art. 7(c), one can observe that states generally do not allow deprivation of nationality based on joining a non-state military force, largely because of the legal uncertainty such a regulation would cause in practice. Further, although deprivation of nationality because of foreign civil service is still mentioned in a considerable number of nationality acts, the tendency is to abolish this ground of loss.122
IV. SERIOUS PREJUDICIAL BEHAVIOR123 A. General Remarks: Treaties Art. 7(l)(d) ECN allows the deprivation of a nationality because of conduct in a manner seriously prejudicial to the vital interests of the state party. The wording of 120
121
122 123
The government of the Netherlands decided in 1988/1989, that an acquisition of the nationality of South Africa based on art. 11A nationality act (acquisition of nationality of South Africa by all persons in the age between 15 and 25 years, if they possess a permanent residence permit and live for a period of five years in South Africa) cannot be classified as voluntary, although a possibility to opt out existed, because lodging an opt out declaration had as a consequence that one had to leave the country. See "Kamerstuk" 21 165. Compare Hildegard Schneider, Die Anerkennung von Diplomen in der Europaischen Gemeinschaft, Antwerpen 1995, 367-370. See for example Italy in 1992; see previously art. 8(3) Act 1912. Gerard-Rene de Groot, Staatsangehorigkeitsrecht im Wandel, o.c., 301, 295-298. 233
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this sub-paragraph is drawn from art. 8(3)(a)(ii) of the 1961 Convention on the Reduction of Statelessness. The explanatory report on the ECN stresses that the conduct involved includes notably treason and other activities directed against the vital interests of the state concerned - for example, work for a foreign secret service - but does not include criminal offenses of a general nature, however serious they may be. It is important to compare the formulation of art. 7(d) ECN with the complete text of art. 8(3) of the 1961 Convention, which is set forth in Part III(A) supra. One then notices that certain acts that could be the basis of a deprivation of nationality under the latter treaty are obviously not covered by the provision of art. 7( 1 )(d) ECN. Specifically, art. 7(1 )(d) ECN does not cover the categories mentioned in the 1961 Convention in art. 8(3)(a)(i) and 8(3)(b). To render services to a foreign state or to receive emoluments from another state cannot be automatically classified as behavior seriously prejudicial to the vital interests of a state. And the same applies for taking an oath, making a formal declaration of allegiance to another state, or even engaging in behavior that gives "evidence of [the citizen's] determination to repudiate his allegiance" to the state at issue. B. National Provisions In a considerable number of countries, no ground for loss corresponding with art. 7(1 )(d) ECN exists. This is the case in Canada, Germany,124 Italy,125 Netherlands, Poland,126 Portugal,127 and all the Scandinavian countries. Other countries provide for loss of nationality on grounds that could be qualified, in certain circumstances, as behavior seriously prejudicial to the vital interests of a state. But most provisions are drafted in rather wide and vague terms. In Belgium art. 23(1) provides that naturalized Belgian citizens (more precisely: "les Beiges qui ne tiennent pas leur nationalite d'un auteur beige au jour de leur naissance") may be deprived of their Belgian nationality if they seriously neglect their obligations as a Belgian citizen ("s'ils manquent gravement a leurs devoirs de citoyen beige").128 This ground for loss was introduced into Belgian nationality law in 1934129 and was taken over in the Belgian Nationality Act of 1985 with relevant 124 125 126
127
128
129
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This would be against art. 16 Constitution. See in the past par. 2 Act 1870; par. 27 Act 1913. This would be contrary to art. 22 Constitution. See for the past the Act of 31 January 1926. See art. 34 (2) Constitution, which provides that a Polish citizen cannot be deprived of his nationality unless he renounces it voluntarily. Anne-Fran9oise Ravet-Gobbe, Portugal, Nr. 90, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, loose-leaf edition, underscores that deprivation of Portuguese nationality because of acts against the security or interests of the state would be contrary to art. 30(4) of the Portuguese constitution which forbids deprivation of nationality based on political grounds. Since 1991, Belgians of foreign origin who acquired Belgian nationality because of art. 11 are excluded as well from this ground of loss. See J. K. Carlier / S. Goffin, in Nascimbene, 147. Art. 18 bis Act 1932, introduced by Act of 30 July 1934, Moniteur beige of 5 August 1934; Pasinomie 1934, 248. See Gerard-Rene de Groot, Staatsangehorigkeitsrecht im Wandel, o.c., 43. The regulation of 1934 had its roots in an Act of 25 October 1919 which allowed deprivation. See furthermore on
Loss of Nationality: A Critical Inventory
modifications.130 The procedure of deprivation can be started by the public prosecutor, who has to indicate precisely which acts are classified as negligence of the obligations of a Belgian citizen. According to the preparatory documents on the act of 1934, the citizen in question must have acted manifestly against his obligations; deprivation is not possible because of a different religion or race. The main reason for the application of the provision is a threat to the security of the state and to national independence by active collaboration with the enemy in time of war.131 As already mentioned in Part II (B), fraud, misrepresentation, and similar acts during the naturalization procedure can also be classified as a serious neglect of the obligations as a citizen.132 The same applies for voluntary military service in another state. In France art. 23-7 F provides that a French national who conducts himself properly as a national of a foreign state ("qui se comporte en fait comme le national d'un pays etranger") can be deprived of his French nationality by a "decret" with the consent of the Conseil d'Etat, if the person involved also possesses the nationality of that foreign country. In practice this provision is not applied if somebody, for example, fulfills an (elected) public function in a foreign country, but only if he damages the interests of France or commits hostile acts.133 Of relevance in this context moreover is art. 25 F. This article starts with the following words: L'individu qui a acquis la qualite de Francais peut, par decret pris apres avis conforme du Conseil d'Etat, etre dechu de la nationalite francaise:. ... This implies that an individual who has acquired French nationality can be deprived of his nationality by a decret with the consent of the Conseil d'Etat, if one of the facts mentioned in art. 25 occurred. Reading this provision, one has to realize that French nationality regulations distinguish between attribution of the nationality "d'origine" (articles 18-20-5 Cc) and acquisition of the nationality (articles 21-22-3 Cc). The deprivation based on this article is only possible, if the person involved has acquired French nationality, not if French nationality was attributed. A deprivation based on art. 25 F is possible, if one of the following conditions is
130 131
132 133
the procedure of deprivation the Acts of 15 May 1922 and 4 August 1926. By Decree of 6 May 1944 the art. 18 ter and 18 quater were introduced in the Act of 1932 making it possible to deprive also Belgians of origin of their nationality in case of conviction in absence for acts committed during World War II. These last articles were not taken over in the Act of 1985. See Michel Verwilghen, Le code de la nationalite beige, Bruxelles 1985, 412-419. The predecessor of art. 23(1) (art. 18 bis Act 1932) was before the war of 1940-1945 applied in four cases, directly after the war in 34 cases. Since then art. 18 bis and art. 23 have not been applied. Information provided by Jan Van De Velde, Advisor General, Ministry of Foreign Affirs, Brussels, in a letter of 13 December 2000. Closset, Nr. 161. Hugues Fulchiron/ Savinien Grignon Dumoulin, France, Nr. 219, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, loose-leaf edition. See on this provision as well, Paul Lagarde, in Nascimbene, 323. In an E-mail of 14 January 2001 Lagarde mentions that art. 23-7 is not used since 1973.
235
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fulfilled: the person involved is sentenced for a crime which implies a danger to the fundamental interests of the nation ("s'il est condamne pour un acte qualifie (L.n° 93-933 du 22 juill. 1993) de crime ou delit constituant une atteinte aux interets fondamentaux de la Nation"); when the naturalized citizen is condemned for a certain crime ("s'il est condamne pour un acte qualifie (L.n° 93-933 du 22 juill. 1993) de crime ou delit prevu et reprime par le chapitre II du titre III du livre IV du Code penal"); when he is sentenced because of a violation of French military service obligations ("s'il est condamne pour s'etre soustrait aux obligations resultant pour lui du Code du service national"); when he was involved in acts profitable for a foreign state, which were incompatible with the status of a French national and prejudicial to the interests of France ("s'il s'est livre au profit d'un Etat etranger a des actes incompatibles avec la qualite de Francais et prejudiciables aux interets de la France"); or finally, if he was condemned to at least five years imprisonment ("s'il a ete condamne en France ou a l'etranger pour un acte qualifie de crime par la loi francaise et ayant entraine une condamnation a une peine d'au moins cinq annees d'emprisonnement"). According to art. 25-1 F, deprivation of nationality based on the grounds of art. 25 F is possible only within a period of ten years after the acquisition of French nationality. Furthermore deprivation is not possible more than ten years after the commission of the acts involved. The Greek provision of art. 20(1 )(c) G is considerably less detailed.134 A Greek citizen may be declared to have forfeited Greek citizenship if, while he was residing in another country, he acted for the benefit of that country and against the interest of Greece.135 The United Kingdom has a very elaborate regulation of deprivation of British nationality for naturalized nationals (including those who acquired citizenship by registration).136 Deprivation of nationality by order of the Secretary of State is, according to sec. 40(3) UK, possible if the citizen involved (a) has shown himself by act or speech to be disloyal or disaffected towards Her Majesty; or (b) has, during any war in which Her Majesty was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist an enemy in that war; or 134 135
136
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Anastasia Grammaticaki-Alexiou, in Nascimbene, 401, 402. See on this privison Zoe Papassiopi-Passia, The Greek Nationality Law in a Nutshell, Review Hellenique de Droit International 1998, 514, 515, in particular footnote 48. The deprivation provisions of sec. 40 also apply to British Dependent Territories citizens (by virtue of sec. 40(10) of the 1981 Act) and British Nationals (Overseas) (by virtue of art. 7(11) of the Hong Kong (British Nationality) Order 1986). Information provided by Andrew Hirst, Policy Section, Immigration and Nationality Directorate, Home Office, in a letter of 6 February 2001.
Loss of Nationality: A Critical Inventory
(c) has, within the period of five years from the relevant date, been sentenced in any country to imprisonment for a term of not less than twelve months. ... Sec. 40(5) prescribes, in addition, that the Secretary of State (a) shall not deprive a person of British citizenship under this section unless he is satisfied that it is not conducive to the public good that that person should continue to be a British citizen; and (b) shall not deprive a person of British citizenship under subsection 3) on the ground mentioned in paragraph c) of that subsection if it appears to him that that person would thereupon become stateless. In case of deprivation based on sec. 40(3)(a) or (b) UK, statelessness is possible, which conflicts with art. 7(3) ECN. The procedure to be followed in case of an intended deprivation is regulated by sec. 40(6)-(8): (6) Before making an order under this section the Secretary of State shall give the person against whom the order is proposed to be made notice in writing informing him of the ground or grounds on which it is proposed to be made and of his right to an inquiry under this section. (7) If the person against whom the order is proposed to be made applies in the prescribed manner for an inquiry, the Secretary of State shall, and in any other case the Secretary of State may, refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Secretary of State and of such other members appointed by the Secretary of State as he thinks proper. (8) The Secretary of State may make rules for the practice and procedure to be followed in connection with references under subsection (7) to a committee of inquiry; and such rules may, in particular, provide for conferring on any such committee any powers, rights or privileges of any court, and for enabling any powers so conferred to be exercised by one or more members of the committee. The Irish regulation has much in common with the British, sec. 19(1) IRL states: The Minister [for Justice] may revoke a certificate of naturalisation if he is satisfied - ... (b) that the person to whom it was granted has, by any overt act, shown himself to have failed in his duty of fidelity to the nation and loyalty to the State, or (d) that the person to whom it is granted is also, under the law of a country at war with the State, a citizen of that country, or In respect of the procedure to be followed, sec. 19(2) and (3) IRL prescribes that: (2) Before revocation of a certificate of naturalisation the Minister shall give 237
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such notice as may be prescribed to the person to whom the certificate was granted of his intention to revoke the certificate, stating the grounds therefore and the right of that person to apply to the Minister for an inquiry as to the reasons for the revocation. (3) On application being made in the prescribed manner for an inquiry under subsection (2) the Minister shall refer the case to a Committee of Inquiry appointed by the Minister consisting of a chairman having judicial experience and such other persons as the Minister may think fit, and the Committee shall report their findings to the Minister. The Luxembourg regulation is inspired by both the Belgian137 and French nationality legislation. According to art. 27 L, deprivation of nationality is possible on the application of the public prosecutor in case of a naturalized person (more precisely: "le Luxembourgeois qui ne tient pas sa nationalite d'un auteur luxembourgeois au jour de sa naissance"), if he seriously neglects his obligations as a Luxembourg citizen,138 he exercises rights or fulfills obligations as a foreign national,139 or he was sentenced because of certain crimes exhaustively listed.140 In Moldova art. 23(1 )(c) allows the deprivation of nationality in case of actions seriously prejudicial to the vital interests of the state ("esentiali statului"), which are proved by the court. Spain provides in art. 25(l)(a) SP that for naturalized Spanish nationals ("los espanoles que no lo sean de origen"), deprivation of their nationality is possible if a sentence condemns them to the loss, according to the rules established by the criminal law. This sanction plays a role in case of delicts against the external security of the state.141 In Switzerland art. 48 makes it possible for the Ministry of Justice to deprive a dual citizen of his Swiss nationality if his behavior severely damages the interests or the reputation of Switzerland ("wenn sein Verhalten den Interessen oder dem Ansehen der Schweiz erheblich nachteilig ist").142 The Turkish nationality legislation contains a long list of other grounds for deprivation of nationality. Art. 25 mentions, as a ground for loss for nationals living abroad, the refusal to fulfill within three months their military obligations if they are summoned to defend Turkey in case of a declaration of war abroad, refusal to return 137
138 139 140
141 142
238
See Fernand Schockweiler, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, loose-leaf edition, Luxembourg, Nr. 84. Compare the previously mentioned 23(1) B. Compare art. 23-7 F. Compare the previously mentioned art. 25 F. Statistical data on the application of these provisions are not available. These grounds for loss were applied by the Luxembourg courts after the Second World War. Information provided by M. A. Ketter in a letter of 28 September 2000. Art. 141 Codigo Penal. See Elisa Perez Vera/ Jose Maria Espinar Vicente, Nr. 89. According to Roland Scharer, Swiss Nationality Section, in an E-mail of 15 January 2001, art. 48 has not been applied for about 50 years. He mentions also that about 15 years ago it could not be applied to a member of the Italian Red Brigades because it would have rendered that person stateless.
Loss of Nationality: A Critical Inventory
after a desertion from the Turkish army, or, for members of the armed forces staying abroad on holidays, etc., failure to return within three months after the leave period involved.143 The previously mentioned grounds for deprivation apply for all Turkish citizens. For naturalized Turkish nationals, art. 26 declares that a further ground for deprivation is staying abroad and refusing to come back to Turkey within three months144 after a summons given by the Turkish authorities, if the person involved committed criminal acts against the economic or financial security of Turkey. In case of war this provision can be applied against Turkish nationals by birth as well. In the United States a comparable regulation can be found in sec. 349(a)(7) INA regarding acts of treason, attempting by force to overthrow the government, or bearing arms against the United States.145 Furthermore sec. 340 of the statute provides for revocation of a naturalization decree based on acts committed after the naturalization. Specifically, based on a conviction for a refusal on the part of a naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning subversive activities, or on his becoming a member of or affiliated with any organization, membership in or affiliation with which at the time of naturalization would have precluded such person from naturalization. Each of these grounds for loss of citizenship would appear to be unconstitutional absent additional proof that the person involved specifically intended to relinquish U.S. citizenship, under the Supreme Court's rulings in Afroyim v. Rusk and Vance v. Terrazas.146 According to art. 37(B)(II), naturalized Mexicans lose their nationality by accepting foreign noble titles. This provision obviously lacks contemporary relevancy. This provision appears to contradict art. 12 of the Mexican Constitution, which states that titles of nobility granted by a foreign state do not have any consequences under Mexican law.147 It is of course obvious that all cited provisions are considerably too wide in view of art. 7(1 )(d) ECN. Moreover, the above cited provisions of Belgium, France (at least art. 25), Ireland, Luxembourg, Mexico, Spain, and the UK discriminate against naturalized citizens, which constitutes a violation of art. 5(2) ECN. An application of art. 23-7 F, 20(1 )(c) G and 48 SWIT could in certain circumstances be possible under art. 7(1 )(d) ECN. Austria was of the opinion - soundly, in my view - that the 143
144 145 146 147
Art 25 (c,d,e,f) on the loss of Turkish nationality by persons who avoid satisfying military service in Turkey and live outside Turkey is applied frequently. In 1990: 855 persons; 1991: 948 persons; 1992: 1882 persons; 1993: 1333 persons; 1994: 1077 persons;1995: 977 persons; 1996: 1154 persons; 1997: 506 persons; 1998: 991 persons; 1999: 2009 persons; 2000: 1880 persons (Information provided by Sadrettin KarahocagJ, Turkish Interior Ministry (The General Directorate of Civil Status and Nationality Issues; Head of Nationality Department) in an e-mail of 23 October 2000). In case of war or emergency within one month. See Trop v. Dulles, 356 U.S. 86 (1956); 239 F II 527; AJIL 1958, 777. Sec. 340 INA, see above in parts I(F) and II(B). See Philippe Couvreur, Mexique, Nr. 66, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationality, Paris, loose-leaf edition. 239
G.-R. de Groot
above-mentioned par. 33 of the Austrian Nationality Act, according to which an Austrian in the service of a foreign country shall be deprived of nationality if he severely damages the interests or the reputation of Austria by his behavior, had a wider application than is permissible under art. 7(1 )(d), which covers only acts "seriously prejudicial to the vital interests" of Austria. C. Statelessness Art. 7(3) ECN does not allow the deprivation of a nationality because of behavior which constitutes a danger for the vital interests of the state if the consequence would be Statelessness of the person involved. Nevertheless, we can observe that some of the provisions described above allow deprivation even if Statelessness is possible. D. Trends Art. 7(1 )(d) ECN shows, in combination with the cited national provisions, certain tendencies. First, only behavior seriously prejudicial to vital interests of the state can legitimate deprivation of nationality. Second, deprivation of nationality on this ground shall not cause Statelessness. And importantly, all citizens have to be treated equally. It is not acceptable that only naturalized citizens can be deprived of their nationality because of their behavior (art. 5(2) ECN). Finally, one should realize that several countries studied in this paper do not accept serious prejudicial behavior as a ground for loss of nationality at all (ten countries); six countries apply this ground for loss exclusively to naturalized citizens, which is not acceptable under art. 5(2) ECN. Only Austria, France, Greece, Moldova, Switzerland, and Turkey apply this ground also to natural born citizens.
V. LACK OF A GENUINE LINK148 A. General Remarks: Treaties Art. 7(1 )(e) ECN allows for loss of nationality because of a lack of a genuine link between the state party and a national habitually living abroad. The explanatory report on the ECN declares: "It is presumed that the State concerned will have taken 148
240
Gerard-Rene de Groot, Staatsangehorigkeitsrecht im Wandel, o.c., 290-295. In some countries, this ground for loss has a very long tradition going back to art. 17(3) Code civil, which provided for loss of nationality in case of "etablissement fait en pays etranger, sans esprit de retour." The provision clarified that having a commercial establishment in another country was not enough to conclude that the intent to return was lacking ("Les etablissements de commerce ne pouvront jamais etre consideres comme ayant etc faits sans esprit de retour."). See for Luxembourg: Schockweiler, in Closset/ Verwilghen, Nr. 82. Compare as well for Austria, art. 32 ABGB (in force until 1925); Germany, par. 21 Act 1870 (until 1913); Netherlands, art. 9(3) Cc 1838 and art. 10(3) Act 1850, and for Spain, art. 4(4) and 112 Act 1870; art. 26 Cc 1889 (in force until 1954).
Loss of Nationality: A Critical Inventory
all reasonable measures to ensure that this information is communicated to the persons concerned." Furthermore the report underscores: Possible evidence of the lack of a genuine link may in particular be the omission of one of the following steps taken with the competent authorities of the State Party concerned: i. registration; ii. application for identity or travel documents; iii. declaration expressing the desire to conserve the nationality of the State Party. The explanatory report continues with the remark that: Sub-paragraph e also has to be interpreted in the light of: - the definition of nationality as a legal bond between an individual and a State (Article 2, paragraph a), - the prohibition of the arbitrary deprivation of nationality (Article 4, paragraph c), - the possibility of excluding children born outside the territory from acquiring the nationality ex lege of one parent (Article 6, paragraph l.a) and - the right to an administrative or judicial review (Article 12). Obviously, administrative or judicial review of the decision that no genuine link exists must be possible. That fact should perhaps imply that a judge could come to the conclusion that there is still a genuine link, even though the formal criteria of the nationality legislation of the country involved are fulfilled. The possibility of loss of nationality because of continuous residence abroad is also mentioned in art. 7 of the Convention on the Reduction of Statelessness of 1961: 3. Subject to the provisions of paragraphs 4 and 5 of this Article, a national of a Contracting State shall not lose his nationality, so as to become stateless, on the ground of departure, residence abroad, failure to register or on any similar ground. 4. A naturalized person may lose his nationality on account of residence abroad for a period, not less than seven consecutive years, specified by the law of the Contracting State concerned if he fails to declare to the appropriate authority his intention to retain his nationality. What is important in this context is a resolution accepted as an annex to the Convention on the Reduction of Statelessness 1961, which reads as follows: (III) The Conference recommends Contracting States making the retention of nationality by their nationals abroad subject to a declaration or registration to take all possible steps to ensure that such persons are informed in time of the formalities and time limits to be observed if they are to retain their nationality. B. National Provisions
The nationality laws of several countries contain provisions that make possible the loss of nationality because of a continuous residence abroad. The details of these regulations vary considerably. 241
G.-R. de Groot
In Denmark, art. 8(1) provides that any person who is born abroad and has never lived in Denmark, nor stayed there under conditions indicating an interdependence ("samhorighed")149 with Denmark, shall lose his Danish citizenship upon attaining the age of 22. The Minister for the Interior or anyone so authorized by him may, however, on application submitted to him before this time, permit the citizenship to be retained.150 Almost identical provisions can be found in the other Scandinavian countries (art. 8b FIN, 8 1C,151 8 N, 8 SW; see also art. 14 SW bill 2000:147). In Finland there have been some problems of interpretation of this provision as to whether an application must be submitted to the president even in cases when it is obvious that the person in question has not lost his Finnish nationality because of a period of residence in Finland. It was decided, that in such a case the applicant may be notified that he will not lose the Finnish nationality.152 The Scandinavian nationality statutes have separate provisions for loss of their nationality in case of a national who also possesses the nationality of another Scandinavian country with which a special treaty is concluded, if the person involved lives, after having attained the age of majority, during a period of five consecutive years in the country of his other nationality. If I see it correctly, these provisions do not have any practical relevance, because the treaties involved are not (yet) in force.153 Whereas in the Scandinavian countries an individual born abroad has to apply for an authorization to retain his nationality in the case of permanent residence abroad, Belgium has chosen a different construction: the individual involved has to make a declaration of continuation of nationality. Art. 22(1)(5)B 154 provides that, since 1985, Belgian nationality is lost by a Belgian who was born abroad and outside 149
150
151
152
153
154
242
Henrik Zahle, Danish nationality law, in Nascimbene, 194: one year of residence in Denmark is enough. Cf. as well Allan Rozas/ Markku Suksi, 292, note 54. Ingrid Bellender, 658, note 38 states that for Sweden this consent is normally granted. In the period 1996-1999 the authorization to retain Swedish nationality has been granted in 753 cases (1996 = 184; 1997 = 191; 1998 = 188 and 1999 = 190). Information given by Bo Lundberg, Migrationsverket in a letter of 6 September 2000. Jon Thors, Doms- og Kirkjumalar Aduneytid (Ministry of Justice and Ecclesiastical Affairs), Reykjavik in a letter of 17 November 2000 underscores that most of the individuals falling under the rule of art. 8 have been in contact with Iceland to such an extent that they fulfill the condition of having either been domiciled in the country or resided in Iceland for any purpose which could be interpreted as indicating a desire to be an Icelandic citizen and therefore a permit granted by the president to retain the citizenship is not needed. Such permits are however granted now and then, but less than once a year. No statistical information is available. Opinion delivered 19 October 1990 (D.No. 32/20/89) of the Chancellor of Justice. See Allan Rozas/ Markku Suksi, in Nascimbene, 292. See for Denmark: Henrik Zahle, in Nacimbene, 196; for Finland: Allan Rozas/ Markku Suksi, Nascimbene, 292; for Sweden Ingrid Bellander, Suede, Nr. 84, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, loose-leaf edition. Jean Yves Carlier/ Sarah Goffin, Le droit beige de la nationalite, in Nascimbene 146 mention that the provision was included in Belgian nationality law in 1985, inspired by Denmark and the Netherlands. See Doc. Parl., Chambre, sess. ord. 1983/84, 21, p. 122.
Loss of Nationality: A Critical Inventory
the former Belgian colonies if a) he had his main permanent residence abroad between his 18th and 28th birthdays; b) he is not fulfilling a function in service of the Belgian government or acquired with the intervention of the Belgian government and is not employed by a Belgian legal person; and c) he did not declare before his 28 birthday that he wants to keep his Belgian nationality. On the day of such a declaration, a new period of ten years starts to run. The provision does not apply to a Belgian national who would become stateless. The Belgian provision was introduced on 1 January 1985 and does not apply at all to Belgian nationals who had already reached the age of majority.155 If a national did not make the required declaration of continuation because of an "act of God" ("cas fortuit ou de force majeure"), he can ask permission from the court to submit the declaration at a later moment.156 It is remarkable that the Belgian provision expressly makes an exception for persons living abroad in the service of Belgium or as an employee of a Belgian company.157 Luxembourg has had since 1987 a very similar provision (art. 25(8) L), but the required period of permanent residence abroad is 20 years. Living abroad as an employee of a Luxembourg company does not save one's Luxembourg nationality if one forgets to lodge a declaration of continuation. If the person involved or his spouse lives abroad in service of the State of Luxembourg or of an international organization, this ground for loss does not apply. In contrast to the Belgian regulation, the declaration of continuation has to be repeated in Luxembourg at least every 20 years. The provision does not apply if statelessness would be the consequence. 1 58 The Netherlands follows similar lines. Art. 15(c) provides that a person who is of full age shall lose his Netherlands nationality if, after coming of age, he has his place of residence for a continuous period of ten years outside the Netherlands, the Netherlands Antilles, or Aruba in the country of his birth and of which he is a national, other than in the service of the Netherlands or the Netherlands Antilles or of an international organization in which the Kingdom is represented, or as the spouse of a person in such service. In contrast with Belgium and Luxembourg, there exists no possibility of preventing the loss by lodging a declaration to the competent authorities stating that one wants to retain one's Netherlands nationality.159 155 156 157
158
159
See Closset, Nr. 154, with reference to Circ. 17 December 1984, Aff. etrang. Closset, Nr. 154. Regrettably no statistical data are available on the application of this provision. Information provided by Jan Van De Velde, Advisor General, Ministry of Foreign Affairs, Brussels, in a letter of 13 December 2000. Statistical data on the application of this provision are not available, because of the fact that this ground for loss was only introduced by art. 46 of the Statute of 11 December 1986, modifying the Luxembourg nationality act (in force on 1 January 1987). The first cases of loss based on this ground will occur on 1 January 2007. Information provided by M. A. Ketter in a letter of 28 September 2000. Such a declaration of retention could be made in the past until 1985 (see art.7(3) Act 1892). Until 1910, the provision of art. 7(3) could cause statelessness.
243
G.-R. de Groot
Moreover, no possibility exists for the authorities to correct the loss in cases where the person involved still has evident ties with the Netherlands. The loss happens ex lege. Based on the above-cited explanatory report on art. 7(1 )(e) ECN, it is doubtful whether the legal construction of art. 15(c) NL conforms with the Convention. If a Netherlands national who fulfills the requirements of art. 15(c) is registered at the Embassy, is in possession of a Netherlands passport, and expresses his desire to retain Netherlands nationality, he nevertheless loses this nationality ex lege, which is, in my opinion, a violation of the Convention. Bill 25 891 (R 1609) proposes an important modification of art. 15(c) in this respect. If the bill is accepted by parliament, Netherlands nationality will no longer be lost by a person who is in possession of a Netherlands passport not older than ten years or a certificate of possession of Netherlands nationality, which is not older than ten years. After that modification, art. 15(c) will be in conformity with the new Convention. In France a different construction is used (art. 23-6 F). The loss of French nationality can be established ("constatee") by a judgment if the person involved acquired French nationality by descent (more precisely: "francais d'origine par filiation"), never possessed the "status of a French national" ("possession d'etat"), and never had his habitual residence in France. Additional conditions are that the ancestors of the person in question neither had the "status of a French national" nor lived in France for the last fifty years. The judgment also has to indicate at which moment the French nationality was lost. It is possible to decide that the nationality was already lost by the parent(s) of the person involved and that this person therefore never possessed French nationality.160 Art. 23-6 is only used in exceptional cases.161 Art. 23-7 F was already mentioned, according to which a French national who behaves himself as a national of a foreign country can be deprived of French nationality by a "decret" in conformity with an opinion given by the Conseil d'Etat. In Greece a possibility existed until June 1998 to deprive a Greek national, of non-Greek ethnic descent, of Greek nationality because of permanent residence abroad. Art. 19 provided that a national of non-Greek ethnicity who left the territory of Greece without any intention of returning may lose Greek citizenship. The same applied for a person of non-Greek ethnic descent who was born and resided permanently in another country. The decision on the loss of Greek nationality had to be made by the Minister of the Interior in conformity with the opinion of the council for citizenship.162 Art. 19 was abolished on 25 June 1998.163 160 161
162
244
On this provision see Paul Lagarde, in Nascimbene, 323, 324. In an E-mail of 14 January 2001 Paul Lagarde mentions that the only case he knows from the last few years was the decision of the Tribunal de Grande Instance of 18 October 1985, Revue critique de drot international priv - 1987, 93 (with comment of Lagarde). See on this old provision Anastasian Grammaticaki-Alexiou, in Nascimbene, 408. De BrabandereMarescaux/Koukoulis-Spiliotopoulos, NR. 99 argued that this ground for loss has been non-existent since 11 June 1975 because it violates art. 4(3) of the Greek Constitution, where it is not mentioned: "Greek citizens are those who possess the qualifications specified by the law. No one shall be deprived of his citizenship save in the case of persons acquiring by their own free will another citizenship or
Loss of Nationality: A Critical Inventory
In Ireland a regulation providing for loss of Irish nationality because of continuous residence abroad applies exclusively to naturalized citizens. Sec. 19(1 )(c) provides:164 The Minister [of Justice] may revoke a certificate of naturalization if he is satisfied ... (c) that (except in the case of a certificate of naturalization which is issued to a person of Irish descent or associations) the person to whom it is granted has been ordinarily resident outside Ireland (otherwise than in the public service165) for a continuous period of seven years and without reasonable excuse has not during that period registered annually in the prescribed manner his name and a declaration of his intention to retain Irish citizenship with a diplomatic mission or consular office or with the Minister ... Some similarities with the decribed provisions exist in Spain art. 24, according to which Spaniards of full age ("emancipados"),166 who have their habitual residence abroad, lose Spanish nationality if they exclusively use their other nationality and if that nationality was attributed to them before they reached full age (emancipation). The Scandinavian, Belgian, French, Luxembourg, and Spanish constructions are, as such, not problematic in view of art. 7( 1 )(e) ECN. An authorization of continuation can be given, and an individual can make a declaration of continuation himself. Alternatively, the authorities will decide in the case involved whether a relevant link to the country of origin still exists. The corresponding provision still in force in the Netherlands (art. 15(c)) gives problems, because of a lack of attention to the concrete circumstances of the person involved. The Irish provision is, in my opinion, very problematic. The Irish regulation applies only to naturalized citizens, which is not acceptable in view of art. 5(2) ECN. It has to be stressed that the Irish provision has an ethnic dimension as well, because the provision does not apply to persons of Irish descent or associations. This is also unacceptable under art. 5(1) ECN. In Canada sec. 14 bill C-16 provides that a person who acquires Canadian nationality iure sanguinis when the parent was also born outside of Canada after 14
163
164
165
166
joining a service in another country which is contrary to the national interests, in accordance with the conditions and procedure laid down by the law in detail. Act 2623/1998. The abolition did not have retroactive effect. See Zoe Papassiopi-Passia, The Greek Nationality Law in a Nutshell, Revue Hellenique de Droit International 1998, 513, 514, who mentions that the Constitution of the 1975 provided that art. 19 would remain in force until abolished by law, in spite of the obvious unconstitutionality of the provision. O'Leary, 436. Philippe de Patoul/Tony O'Connor/John G. Fish, Irlande, Nr. 74 mention in 1984 that since 1956 this provision has never been applied. Sec. 2 states that "public service," when used in relation to the employment of a person, refers to employment in the service of the government, whether or not in the civil service, or in the service of any public corporation or authority maintained wholly or partly out of public funds or in respect of which a Minister of State is responsible. Jose Carlos Fernandez Rozas/ Aurelia Alvarez Rodriguez, in Nascimbene, 235, mention that in their opinion this ground of loss exclusively applies if the persons involved became "emancipado" after the Act of 1990 modifying the nationality provisions of the Codigo civil came in force. 245
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February 1977 or his birth outside of Canada (and therefore his Canadian citizenship) was registered after that date, loses Canadian citizenship on attaining the age of 28, unless the person applies to retain citizenship and has resided in Canada for at least 1095 days during the six years before so applying.167 In Mexico naturalized citizens can lose their nationality after having resided for five years abroad ("por residir durante cinco anos continuos en el extranjero") (art. 37(B)(II)). In Turkey deprivation of nationality is possible if a person acquired a foreign nationality and lived abroad continuously for a period longer than seven years without formal contact with Turkey and without the presence of indications of a link with Turkey (art. 25 (h)). Switzerland introduced loss of Swiss nationality because of permanent residence abroad in 1952.168 Art. 10(1) provides that a child of a Swiss parent loses Swiss nationality at his 22nd birthday if that person a) was born abroad, b) also possesses another nationality, and c) was not registered until then at the Swiss authorities (more precisely: "wenn es nicht bis dahin einer schweizerischen Behorde im Ausland oder Inland gemeldet worden ist oder sich selber gemeldet hat oder schriftlich erklart, das Schweizer Burgerrecht beibehalten zu wollen"). The United States formerly provided for possible revocation of a naturalization decree if the naturalized citizen moved within five years after his naturalization to another country. That provision was repealed in 1994.169 C. Cases of Non-Acquisition iure sanguinis in Case of Being Born Abroad Art. 7(1 )(e) ECN allows for deprivation of nationality based on the lack of a genuine link because it is acceptable that a state wants to avoid the transmission of its nationality to generations born abroad without any limitation. Another possibility for a legislator is of course to limit the possibility of transmission of the nationality by parents to their children in case of birth abroad. In order to allow an evaluation of loss of nationality because of lack of a genuine link, one has to pay attention as well to cases of limitation of transmission of nationality in case of birth abroad. Several of the countries studied in this contribution provide for such limitation on the transmission of their nationality in case of birth abroad. According to art. 8 B, Belgian nationality is acquired by every child of a Belgian parent born in Belgium, but by a child of a Belgian parent born abroad only if one of three different conditions is fulfilled: (a) the parent was born in Belgium or in territories under Belgian administration ("dans des territoires soumis a la souverainete beige ou confies a 1'administration de la Belgique");170 (b) within five years after 167 168
169 170
246
Compare sec. 3(1 )(b) Citizenship Act. See Pierre Corboz, Suisse, Nr. 81, 82, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, loose-leaf edition. Also R.Schrarer, REC, 359 ff. United States v. Banafsche, 616 F.2d 1143 (9th Cir. 1980). Congo, Rwanda and Burundi.
Loss of Nationality: A Critical Inventory
the birth of the child, the Belgian parent registers the child as a Belgian national;171 (c) the child is otherwise born stateless or loses his (other) nationality before his 18th birthday ("ou ne conserve pas jusqu'a 1'age de dix-huit ans ou son emancipation avant cet age, une autre nationalite"). Since 1 January 2000, the German nationality act provides in par. 4(4) that German nationality will no longer be acquired by descent if a child of German parent (s) is born abroad after 31 December 1999 and has his habitual residence outside of Germany ("wenn der deutsche Elternteil nach dem 31. Dezember 1999 im Ausland geboren wurde und dort seinen gewohnlichen Aufenthalt"). German nationality is nevertheless acquired if the child otherwise would be stateless. If the child does not acquire German nationality of the parent (s) ex lege because of the birth of two generations abroad, a parent can register the child as a German national within one year after the birth of the child.172 British nationality law contains a limitation of the transmission by descent in case of birth abroad as well. The relevant British provisions are quite complicated. Sec. 1(1) GB provides that a person born in the United Kingdom shall be a British citizen if at the time of the birth his father or mother is (a) a British citizen; or (b) settled in the United Kingdom. Section 2 states, inter alia, that a person born outside the United Kingdom shall be a British citizen if at the time of the birth his father or mother (a) is a British citizen otherwise than by descent;173 or (b) is a British citizen and is serving outside the United Kingdom in British service, his or her recruitment for that service having taken place in the United Kingdom; or (c) is a British citizen and is serving outside the United Kingdom in service under a European Community institution, his or her recruitment for that service having taken place in a country which at the time of the recruitment was a member of the Community. Section 3 deals with the nationality status of, to put it briefly, the second generation born abroad. According to subsection 2 of section 3, a person born outside the United Kingdom shall be entitled, on an application for his registration as a British citizen made within a period of twelve months from the date of the birth, to be registered as such a citizen if the requirements specified in subsection (3) or, in the case of a person born stateless, the requirements specified in paragraphs (a) and (b) 171
172
173
Regrettably no statistical data are available on the application of this privision. Information provided by Jan Van De Velde, Advisor General, Ministry of Foreign Affairs, Brussels, in a letter of 13 December 2000. This limitation of the transmission of German nationality is completely new in German nationality law, but it will take some considerable time before this modification will have concrete results. The first children who will not acquire German nationality because of this limitation are the children of the German children born outside of Germany in the year 2000. Children of naturalized British citizen therefore always acquire British nationality in case of birth abroad. The High Court, Queens Bench Division, decided on 6 October 2000 per Mr. Justice Gibbs, that British citizens by descent are entitled to seek naturalization (Law report 17 October 2000). The Home Secretary has lodged an appeal against the decision of the High Court. Information provided by Andrew Hirst, Policy Section, Immigration and Nationality Directorate, Home Office, in a letter of 6 February 2001.
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of that subsection, are fulfilled in the case of either that person's father or his mother ("the parent in question"). These requirements are: (a) that the parent in question was a British citizen by descent at the time of the birth; and (b) that the father or mother of the parent in question(i) was a British citizen otherwise than by descent at the time of the birth of the parent in question; or (ii) became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and (c) that, as regards some period of three years ending with a date not later than the date of the birth(i) the parent in question was in the United Kingdom at the beginning of that period; and (ii) the number of days on which the parent in question was absent from the United Kingdom in that period does not exceed 270. Subsection 4 permits the Secretary of State to allow a later registration, by providing that "if in the special circumstances of any particular case the Secretary of State thinks fit, he may treat subsection (2) as if the reference to twelve months were a reference to six years." If a person is born abroad as a child of a British parent without acquiring British citizenship, he may acquire a right to registration if the conditions of subsection 5 are fulfilled: (5) A person born outside the United Kingdom shall be entitled, on an application for his registration as a British citizen made while he is a minor, to be registered as such a citizen if the following requirements are satisfied, namely(a) that at the time of that person's birth his father or mother was a British citizen by descent; and (b) subject to subsection (6), that that person and his father and mother were in the United Kingdom at the beginning of the period of three years ending with the date of the application and that, in the case of each of them, the number of days on which the person in question was absent from the United Kingdom in that period does not exceed 270; and (c) subject to subsection (6), that the consent of his father and mother to the registration has been signified in the prescribed manner. Another country with a limitation of the transmission of nationality iure sanguinis in case of birth abroad is Portugal, where art. l(l)(b) provides that the children of a Portuguese father or a Portuguese mother born abroad acquire Portuguese nationality by birth, if they declare that they want to be Portuguese or if they register the 248
Loss of Nationality: A Critical Inventory
birth in a Portuguese civil register.174 If the parents reside abroad in the service of Portugal, their children acquire Portuguese nationality ex lege (art. 1(1 )(a)). Across the Atlantic Ocean limitations of the transmission of nationality by descent can also be found. In Canada, sec. 4(1 )(b) bill C-16 provides that a person born abroad as child of a Canadian parent acquires Canadian nationality unless the parent herself or himself was born outside of Canada as the child of a father or mother who acquired Canadian citizenship at birth outside of Canada from a Canadian parent. If the result would be statelessness, sec. 11 bill C-16 gives the Minister the power to grant Canadian citizenship to such a person if certain conditions are fulfilled.175 In Mexico art. 30(11) and (III) of the Constitution provides, since 20 March 1997, a severe limitation of the transmission of Mexican nationality in case of birth abroad. Mexican nationality is exclusively acquired by children of a Mexican parent176 if the parent was born in Mexico or acquired Mexican nationality by naturalization. In the United States, sec. 301 IN A177 provides that American citizenship is acquired at birth by the following principal classes of persons: (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person; (d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States; (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization ... by such citizen parent, or any periods during which such 174
175 176
177
Each year approximately 25,000 of these registrations take place. Information provided by Odete de Almeida Pereira da fonseca Jacinto, Director of the Conservatoria dos Registros Centrais, Ministry of Justice, in a letter of 12 December 2000. Compare sec. 8 Citizenship Act. The Mexican nationality of the mother can be transmitted to all her children born abroad since a modification of the Constitution of 26 December 1969. 8 U.S.C. § 1401.
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citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization ... may be included in order to satisfy the physical-presence requirement of this paragraph. ... D. Possible Complications Caused by European Community Law Under very special circumstances it is possible that the loss of nationality of a Member State of the European Union because of continuous residence abroad constitutes a violation of European Community law because of the free movement rights guaranteed by the EC Treaty. A violation of the right of free movement within the European Union could exist, if a national of a Member State would lose his nationality (and therefore the status of citizen of the Union) when he lives abroad in another member state during a certain period.178 The use of the right of free movement guaranteed by the EC treaty in combination with such a regulation would cause the loss of the nationality and therefore, in some cases, the loss of the status of European citizen. In my opinion such a regulation cannot be accepted by Community law. Let us assume that the Netherlands would amend the provision of art. 15(c) of its Nationality Act in the following sense: Netherlands nationality will be lost by any Netherlands national who also possesses another nationality and lives, after having reached the age of majority, for a continuous period of ten years outside the Netherlands, the Netherlands Antilles or Aruba in a foreign country, other than in service of the Netherlands or the Netherlands Antilles, or of an international organization in which the Kingdom is represented, or as the spouse of a person in such service. In some cases the application of this rule would constitute a violation of Community law. That would be the case if somebody were to possess the nationality of the Netherlands and of a non-EU state. After having lived for a period of ten years in, e.g., Germany, he would lose Netherlands nationality and therefore the status of European citizen. This result is especially unacceptable in cases where the citizen involved is not able to renounce his non-EU nationality due to the domestic nationality rules of the non-EU state involved.179 E. Some Exceptional Provisions The above cited sec. 19(1 )(d) IRL, according to which the Minister of Justice may revoke a certificate of naturalization if he is satisfied that the person to whom it is 178
179
250
Similar hesitations are expressed by Siofra O'Leary, in Nascimbene, 436, footnote 59, on section 19(1) IRL. Compare an amendment proposed in a bill, which was sent by the Netherlands government to the Parliament on 25 February 1993. But as early as 16 September 1993 the government modified the proposed new article: no loss of Netherlands nationality should occur if the person involved resides
Loss of Nationality: A Critical Inventory
granted is also, under the law of a country at war with the state, a citizen of that country, has a remote relationship with loss of nationality because of lack of a genuine link. The provision is nevertheless unacceptable, because naturalized citizens are discriminated against by this provision (see art. 5(2) ECN). In this context attention has to be paid as well to par. 29 of the recently modified German Nationality Act. This provision provides that a child of foreign parents born in Germany who has acquired German nationality iure soli because of the new par. 4(3) or by naturalization based on par. 40b, and who also possesses a foreign nationality, has to lodge a written declaration with the German authorities stating whether he wants to retain the German or the foreign nationality. If he chooses in favor of the foreign nationality, German nationality is lost. If no declaration is made before the 23rd birthday, German nationality is lost as well. Before the 21st birthday an application can be made to receive a permit of retention of the foreign nationality in addition to German nationality. Art. 25(7) of the Luxembourg Nationality Act provides that a Luxembourg national who is older than 18 years and also possesses a foreign nationality loses Luxembourg nationality if he made a declaration to the foreign authorities in order to maintain that other nationality ("qui a fait, devant 1'autorite etrangere competente, une declaration en vue de la conserver"). The same applies to a Luxembourg national who did not renounce his foreign nationality within two years after the Luxembourg authorities gave an order to do so ("qui, nonobstant une mise en demeure a lui adressee par le ministre de la justice, n'a pas, dans un delai de deux ans a partir de cette mise en demeure, renonce a la nationalite etrangere") or who did not make a special declaration that he wants to maintain Luxembourg nationality in case a renunciation of the foreign nationality is not possible ("qui n'a pas declare,... vouloir conserver la nationalite luxembourgeoise au cas ou la renonciation a la nationalite etrangere n'est pas possible").180 In Mexico art. 37 provides that a naturalized citizen loses his nationality not only by voluntary acquisition of a foreign nationality, but also by being mentioned in a public document as a foreigner, by using a foreign passport or by accepting noble titles which imply a submission to a foreign state ("por hacerse pasar en cualquier instrumento publico como extranjero, por usar un pasaporte extranjero, o por aceptar o usar titulos nobiliarios que impliquen sumision a un estado extranjero"). F. Trends It is remarkable that an increasing number of countries provide for loss of nationality in case of birth abroad if the nationals involved live permanently abroad. On the
180
in a Member State of the European Union and furthermore, in many cases the loss should be prevented by having a Netherlands passport or a certificate of possession of Netherlands nationality. This ground for loss is inspired by Resolution (77)13 of the Council of Europe. See Fernand Schockweiler, in Closset/ Verwilghen, Nr. 81. 251
G.-R. de Groot
one hand, this approach is used by countries which already try to avoid as often as possible cases of dual nationality, for example, by providing that voluntary acquisition of a foreign nationality is a ground for loss of their nationality (see Belgium, Luxembourg, Netherlands, and Scandinavian countries). On the other hand, this construction is also used as an alternative, instead of specifying that voluntary acquisition is a ground for loss of the original nationality. That is for example the case in Switzerland. In particular, the explanatory memorandum of the ECN underscored that this ground for loss should be applied in a manner that permits all relevant circumstances to be taken into account. Therefore individuals must have the possibility of making a declaration of retention or of lodging an application for permission of the government to retain the nationality involved.
VI. Loss OF FAMILY RELATIONSHIP181 A. General Remarks: Treaties According to art. 7 ( l ) ( f ) ECN, loss of nationality is acceptable where it is established during the minority of the child that the preconditions laid down by internal law which led to the ex lege acquisition of the nationality of the state party are no longer fulfilled. The most important example of this category is loss of nationality because of the fact that the family relationship that led to the acquisition of the nationality iure sanguinis is lost. B. National Provisions An example of a regulation of loss of nationality because of loss of the relevant family relationship is art. 14(1) NL, according to which Netherlands nationality may be lost through cessation of the family law relationship from which Netherlands nationality is derived. This provision does not apply if it would lead to statelessness. The loss provided for by art. 14(1) NL is not restricted to cases where the family relationship ceases during the infancy of the person involved. That is obviously not in conformity with art. 7( 1 )(f) ECN. Bill 25 891 (R1609) therefore proposes restricting art. 14 to minors.182 In only a few other countries a special provision in respect of this ground for loss can be found. This is the case in Belgium183 and Luxembourg (8(4) B; 25(5) L).184 181 182 183
184
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Gerard-Rene de Groot, Staatsangehorigkeitsrecht im Wandel, o.c., 301-303. The proposed modification will have retroactivity to 1 January 1985. If a child loses Belgian nationality because the family relationship with a Belgian parent is annulled before he reaches the age of 18 and the consequence is statelessness, Belgian nationality may again be granted to the child on the basis of art. 10B, if the child was born on Belgian territory. Information provided by Jan Van De Velde, Advisor General, Ministry of Foreign Affairs, Brussels, in a letter of 13 December 2000. Fernand Schockweiler, in Nascimbene, 517.
Loss of Nationality: A Critical Inventory
In both countries this ground for loss is restricted to cases where the relevant family relationship is lost before the majority of the child involved. In France art. 21-1 Cc is (a contrario) interpreted in the same way.185 In Switzerland, art. 8 (introduced in 1990)186 provides that the loss of the family relationship which was the basis for the acquisition of nationality entails the loss of Swiss nationality if this does not cause statelessness. ("Wird das Kindesverhaltnis zum Elternteil, der dem Kind das Schweizer Biirgerrecht vermittelt hat, aufgehoben, so verliert das Kind das Schweizer Burgerrecht, sofern es dadurch nicht staatenlos wird.") In several other countries no special provision can be found, but that does not imply that the nationality is retained if the relevant family relationship is lost. From the competent Swedish authorities I received the information that if a child has acquired the Swedish nationality of the "father" iure sanguinis and the man thereafter declares himself not to be the father of the child, it will be considered that the child never acquired Swedish nationality. This is not based on any provision, but is a consequence of the fact that - judged in retrospect - the man has never been the father of the child.187 In case of the denial of paternity of a Turkish father, the child of a foreign mother loses Turkish nationality unless the child would become stateless.188 The Icelandic authorities mentioned that the Icelandic Nationality Act does not give any answer to the question whether loss of family relationship can cause loss of Icelandic nationality, but underscored that they had not yet encountered this type of case.189 In this context attention has to be paid to a reservation made by Austria on the occasion of its ratification of the European Convention on Nationality concerning art. 7(l)(f): Austria declares to retain the right to deprive a national of its nationality whenever it has been ascertained that the conditions leading to the acquisition of nationality ex lege, as denned by its internal law, are not fulfilled any more. Obviously Austria wants to preserve the possiblity that in a case where the conditions leading to the acquisition of nationality are no longer fulfilled, even after the person involved attained the age of majority, Austrian nationality may be lost as well. 185 186 187
188
189
Information of Paul Lagarde in a E-mail of 14 January 2001. See also Botschaft 26 August 1987 mentioned in Pierre Corboz, Suisse, Nr. 77, Information received from Bo Lundberg, Migrationsverket, in a letter of 6 September 2000. A similar answer was received from Denmark (Niels Beckman, Naturalization Division, Ministry of Justice, in a letter 14 December 2000). Beckman mentions also, that if the consequence is statelessness, the child will be naturalized as soon as possible. Information provided by Sadrettin Karahocagyl, Turkish Interior Ministry (The General Directorate of Civil Status and Nationality Issues; Head of Nationality Department) in an e-mail of 23 October 2000. Jon Thors, Doms- og Kirkjumalar Aduneytid (Ministry of Justice and Ecclesiastical Affairs), Reykjavik in a letter of 17 November 2000.
253
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Furthermore, in Italy art. 3(3) provides for loss of Italian nationality because of a very special case of loss of a family relationship.190 When an adoption is revoked because of the criminal behavior of the adopted child against the adoptive parents, the adopted child loses Italian citizenship if he possesses another citizenship or he regains the prior citizenship. In other cases of revocation of the adoption, the adopted child maintains Italian citizenship. Nevertheless, if revocation occurs when the adopted child is of full age, the latter will be entitled to renounce Italian citizenship within one year after the revocation itself, if he possesses another citizenship or he regains it. Although the situation regulated by art. 3(3) is a tragic one, the loss of Italian nationality in the cases mentioned is not covered by art. 7 ( l ) ( f ) ECN if the adopted person involved has already reached the age of majority. Finally art. 14 MOL provides that if the adoption of a stateless or foreign child is declared null and void, the child is considered never to have acquired the nationality of Moldova, if he has his lawful and habitual residence abroad or if he leaves191 the country for a permanent residence abroad. C.
Difficulties
Loss of nationality because of loss of the family relationship which constituted the basis for the possession of nationality is, as such, acceptable. But a limitation on this ground of loss is desirable. It is, however, questionable whether this limitation should be the age of majority. A much shorter limitation period of, for example, ten years would be preferable. Furthermore, it is remarkable that some countries apply this ground for loss without a clear legal basis. If applicable, this ground of loss should be enacted in a statutory provision.
VII. ADOPTION A. General Remarks: Treaties According to art. 7(1 )(g) ECN a nationality act may provide that the nationality is lost by the adoption of children if the nationality of the adopting parents is acquired. A provision on the consequences of an adoption for the nationality of the adopted child could already be found in art. 17 of the Convention on Certain Questions relating to the Conflict of Nationality Laws concluded in The Hague in 1930: If the law of a State recognises that its nationality may be lost as the result of adoption, this loss shall be conditional upon the acquisition by the person adopted of the nationality of the person by whom he is adopted, under the law 190 191
254
Stefania Bariatti, in Nascimbene, 485. The provision does not mention whether this also applies if the child only leaves the country after a considerable period elapses following the annulment of the adoption. A limitation of this ground for loss is certainly necessary.
Loss of Nationality: A Critical Inventory
of the State of which the latter is a national relating to the effect of adoption upon nationality. This principle was contained as well in art. 5(1) of the 1961 Statelessness Convention: If the law of a Contracting State entails loss of nationality as a consequence of any change in the personal status of a person such as marriage, termination of marriage, legitimation, recognition or adoption, such loss shall be conditional upon possession or acquisition of another nationality. Reference has to be made as well to art. 11(2) of the European Convention on the Adoption of Children, concluded in Strasbourg on 24 April 1967.192 A loss of nationality which could result from an adoption shall be conditional upon possession or acquisition of another nationality. B. National Provisions In some countries, adoption of a child by foreigners is a ground for loss of nationality, provided that the child involved acquires the nationality of the adoptive parents by the adoption or already possesses this nationality. This is, for example, the case in the Netherlands, where art. 16(1)(a) deals with this ground of loss. The same applies for Belgium in art. 22(1)(4),193 Luxembourg in art. 25(4), and Switzerland in art. 8a(l). Art. 27 of the German nationality act provides (since 1977), that a German loses his citizenship because of adoption by a foreigner if the adoption is regarded as valid under German law and if the German receives the citizenship of the person adopting him. The citizenship is not lost if the German remains related to a German parent. The acquisition of the foreign nationality must occur ex lege by the adoption. If the foreign nationality is acquired by declaration of option lodged after the adoption, art. 27 does not apply.194 The loss extends to the minor offspring of the adopted German, if he has sole parental custody and if the acquisition of the new citizenship also extends to the offspring. In some other countries, adoption by foreigners does not have consequences for the possession of the nationality by the child. This is, for example, the case in Mexico, where art. 30(1) Ley de nacionalidad states expressly that adoption has no consequences for the acquisition or loss of nationality ("la adopcion no entrana para el adoptado ni para el adoptante la adquisicion o perdida de la nacionalidad"). Art. 27(2) of the Greek nationality act has to be mentioned in this context as well. According to that provision, adoption of a Greek national by foreigners does not 192 193
194
UNTS 634, 255. Some critical remarks on these provisions are made by Gerard-Rene de Groot, Staatsangehorigkeitsrecht im Wandel, o.c., 302. See Allgemeine Verwaltungsvorschrift zum Staatsangehorigkeitsrecht of 18 October 2000, Comment 27.1. 255
G.-R. de Groot
automatically have consequences for the Greek nationality, but the adoptive parents may apply for the loss of Greek nationality on behalf of their adopted child if the child is still a minor and also has acquired the citizenship of the adoptive parent. This application will be accepted by the Minister of the Interior, who has to take into account the special circumstances of the case.195 The Minister must ask the opinion of the council for citizenship.196 In most other countries loss of nationality by adoption is simply not mentioned at all in the nationality statutes. Adoption by a foreigner does not therefore have consequences for the nationality of the child. In some countries, courts have decided expressly that other grounds for loss cannot be applied by analogy in cases where a minor was adopted by a foreigner (see Switzerland197 and USA198). Moldova made a reservation in respect of art. 7(l)(g) ECN with the following content: "Concerning Article 7, paragraph 1, letter (g), the Republic of Moldova declares its right to recognise and to conserve to the child who has the nationality of the Republic of Moldova, adopted abroad and who acquired the foreign nationality in consequence of his adoption, the right to keep the nationality of the Republic of Moldova." This reservation is in my opinion not necessary at all. Obviously, Moldova does not want to use the possibility to provide loss of nationality in case of adoption of a Moldovan child by foreigners. But no single ground for loss mentioned in art. 7 of the Convention is mandatory. Art. 7 merely indicates which grounds for loss are allowed. The aim of Moldova to allow multiple nationality for Moldovan children adopted abroad is also acceptable in view of art. 15 of the Convention, which allows states parties to determine in its internal law whether its nationals who acquire the nationality of another state retain its nationality or lose it.199 C.
Difficulties
"Full" adoption can at first sight be regarded as a special case of loss of family relationship.200 On the other hand, one can defend a different approach because of 195
196
197
198
199 200
256
De Brabandere-Marescaux/Koukoulos-Spiliotopoulos, Nr. 100, and Zoe Papassiopi-Passia, The Greek Nationality Law in a Nutshell, Revue Hellenique de Droit International 1998, 513. Until 1996, an application was not accepted if the adopted child was delaying his military obligations or was being prosecuted for a crime or offence. However, since the Act 2447/1996, only the adoption of minors (under the age of 18 years) is permitted. Therefore, since then, adopted children can not have any military obligation. See Bundesgericht 16 May 1975, mentioned by Hecker, StAZ 1985, 160. In Switzerland this issue is now regulated by art. 8a, already mentioned above. See Hellmuth Hecker, EinfluB der Adoption auf die Staatsangehorigkeit. Eine rechtsvergleichende Darstellung der Regelungen in 175 Staaten, StAZ 1985, 153-163, with references to Cabrillos v. Angel, 278 F. 174 (1922) and In re Voluntary Adoption of Minors, 226 N.Y. Supp. 445 (1927). Compare also art. 14 MOL described above in part VI(B). A full adoption has as a consequence that the legal relationship with the natural parents is dissolved and new legal relationships between the child and the adoptive parents are created. Some countries provide, next to this full adoption (adoption pleniere), for the possibility of a "weak" adoption (adoption simple), which does not dissolve the legal relationship with the natural parents.
Loss of Nationality: A Critical Inventory
the fact that the loss of the family relationship is in case of adoption a mere legal fiction and not the legal affirmation of a true situation - as is the case with a denial of paternity or an annulment of a recognition. In a comparative perspective one can find both approaches adopted by various countries. It is worth noting that the ECN mentions loss of nationality by adoption in a separate proviso (lit. g) and not as a subcategory of loss of nationality because of a family relationship that was the basis of the acquisition of the nationality involved. If the full adoption is to be regarded as a different category, in my opinion it would be more logical not to provide for loss of nationality in that case.
VIII. Loss: CONSEQUENCES FOR CHILDREN A. General Remarks: Treaties According to the second paragraph of art. 7 of the Convention, a State Party may provide for the loss of its nationality by children whose parents lose that nationality under paragraph 1 of art. 7, except in cases where the nationality is lost by the parent because of voluntary service in a foreign military force (sub c) or because of conduct seriously prejudicial to the vital interests of the state party (sub d). Children shall not lose that nationality, however, if one of the parents retains his or her nationality. Some earlier treaty provisions also deal with the position of children whose parent (s) lose a certain nationality. Article 13 of the Nationality Convention of 1930 states: In cases where minor children do not acquire the nationality of their parents as the result of the naturalisation of the latter, they shall retain their existing nationality. In the 1961 Convention on the Reduction of Statelessness, two provisions dealt with this issue. Art. 5(1) provides that: If the law of a Contracting State entails loss of nationality as a consequence of any change in the personal status of a person such as marriage, termination of marriage, legitimation, recognition or adoption, such loss shall be conditional upon possession or acquisition of another nationality. In conformity with this principle, art. 6 continues: If the law of a Contracting State provides for loss of its nationality by a person's spouse or children as a consequence of that person losing or being deprived of that nationality, such loss shall be conditional upon their possession or acquisition of another nationality. Art. 1(3) of the 1963 Convention on Reduction of Cases of Multiple Nationality provides as follows for the nationality of children when a parent loses the nationality of a state party: 257
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Minor children, other than those who are or have been married, shall likewise lose their former nationality in the event of the acquisition ipso jure of the nationality of another Contracting Party upon and by reason of the naturalisation or the exercise of an option or the recovery of nationality by their father and mother. Where only one parent loses his former nationality, the law of that Contracting Party whose nationality the minor possessed shall determine from which of his parents he shall derive his nationality. In the latter case, the said law may make the loss of his nationality subject to the prior consent of the other parent or the guardian to his acquiring the new nationality. However, without prejudice to the provisions of the law of each of the Contracting Parties concerning the recovery of nationality, the Party of which the minor referred to in the foregoing paragraph possessed the nationality may lay down special conditions on which they may recover that nationality of their own free will after attaining their majority. See as well art. 1(2) of the same Convention: Nationals of the Contracting Parties who are minors and acquire by the same means201 the nationality of another Party shall also lose their former nationality if, where their national law provides for the loss of nationality in such cases, they have been duly empowered or represented. They shall not be authorised to retain their former nationality. B. National Provisions Art. 16 NL corresponds on the most important points with the provision of art. 7(2) ECN.202 The same applies for art. 22(3), (4) and (6) B and 25(3) L. Art. 16 provides, that a minor shall, inter alia, lose his Netherlands nationality: (b) if his father or mother acquires another nationality of his or her own free will and the minor thereby also acquires the foreign nationality or already possesses it; (c) if his father or mother loses his or her Netherlands nationality pursuant to renunciation, permanent residence abroad or revocation of the naturalization decree; (d) if he acquires the same foreign nationality as his father or mother in his own right. The provision mentions expressly that the expressions "father and mother" shall be deemed to include the adoptive father or mother from whom the minor acquired Netherlands nationality. Netherlands nationality is not lost if the other parent possesses Netherlands nationality. 201 202
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I.e., "who acquire of their own free will, by means of naturalisation, option or recovery ...". For detailed remarks on art. 16 in perspective of the European Convention, see Gerard-Rene de Groot, Verder op weg naar een hernieuwd nationaliteitsrecht, Migrantenrecht 1999, 21.
Loss of Nationality: A Critical Inventory
The Belgian and Luxembourg provisions follow the same approach, but add as a condition that the relevant parent (s) must exercise the parental authority in respect to the child. If I see it correctly, Belgian and Luxembourg nationality is not lost if a minor child acquires independently and voluntarily a foreign nationality that has already previously been acquired by his parent(s). In contrast with the Netherlands and Belgian regulations, the child of a Luxembourg national does not lose Luxembourg nationality if his Luxembourg parents lose this nationality because of permanent residence abroad. In the Scandinavian countries, children also lose in principle their nationality if their parents do so. In Denmark, for example, art. 7(3) states that Danish citizenship is forfeited by an unmarried child under the age of 18 years who acquires foreign citizenship because one of his parents, who has the custody or any part thereof, acquires foreign nationality, unless the other parent remains Danish and also has custody. Comparable regulations can be found in 8 FIN, 7 IC, 7 N, and 7 SW.203 See also art. 44(1) SWIT (modified in 1990).204 In Austria art. 29 provides that the loss of nationality by a national because of voluntary acquisition of another nationality also extends to his children born in wedlock and to his adopted children, if they are minors and unmarried and follow him into the foreign nationality by law or would follow him if they were not already in the possession of that nationality, except in the case that the other parent remains a national. A minor who has already reached the age of 14 years loses Austrian nationality only if he has given his consent to the acquisition of the foreign nationality. The loss of nationality also extends to the children of the national if they are minors unmarried and born out of wedlock and would follow him into the foreign nationality by law if their legal representative has explicitly given his consent to the acquisition of the foreign nationality in advance. This applies to children of a man only if his paternity has been established or recognized and he is in charge of care and custody of the children. Compare also the provision of art. 27(2) and (3) A, according to which a national not enjoying full legal capacity loses the nationality only if the declaration of will to acquire a foreign nationality was expressed on his behalf either by his legal representative or, with the legal representative's consent, by himself or a third person. The consent of the legal representative has to be given before the acquisition of a foreign nationality. If neither the parents nor the foster parents are the legal representative, the loss of nationality only occurs if a court competent in guardianship or custody matters approves the declaration of will (consent) of the legal representative before the acquisition of the foreign nationality. Furthermore, a minor national over the age of 14 shall lose the nationality only under the condition that he has expressly 203 204
Compare also 8(2) DK, 8 1C, 8 N and 9A(3) DK, 9 1C, 9A N. A child, represented by his legal representative, can also renounce citizenship. See Corboz, Nr. 84; R. Scharer, La nouvelle revision, REC 1991, 170. 259
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consented to the declaration of will of his legal representative or a third person before the acquisition of the foreign nationality. For Germany art. 19 determines that a legal representative may apply only with the consent of the guardianship court ("Vormundschaftsgericht") for the release ("Entalassung") from citizenship of a person under parental authority or guardianship. Along with the applicants, the state attorney's office is also entitled to appeal against the decision of the court; the decision of the court of appeals is not subject to further appeals. The consent of the guardianship court is not necessary if the father or the mother applies for release for himself or herself and simultaneously applies for the release of the child by virtue of his or her parental authority and if the applicant is responsible for the custody of the child. If the duties of a special advisor ("Beistand") to the mother extend to the care of the child ("Sorge fur die Person des Kindes"), the application of the mother for the child's release requires the consent of the special advisor. In Poland art. 32(5)-(8) of the bill pending in the Sejm deals with the consequences of the loss of Polish nationality by a parent for his children. If both parents renounce their Polish nationality (with consent of the government) their minor children under their custody also lose Polish nationality. If only one parent renounces his nationality, the situation is more complicated. In that case the minor children under his custody also lose their nationality if one of the following conditions is fulfilled: (a) the other parent does not have custody over the children; (b) the other parent is not a Polish citizen; or (c) the other parent expressed before the competent authorities his consent to the loss of Polish citizenship by his minor children. The consent of the other parent (see sub lit c) can be replaced by a decision of the competent Polish court. If a child already reached the age of 16 years, an additional condition for the extension of the loss of Polish nationality by renunciation is the consent of the child involved. A completely different approach can be noticed in some other countries, where loss of nationality by a parent does not have consequences for the nationality of his children. This is the case in Ireland, where sec. 22 provides: 1. The death of an Irish citizen shall not affect the citizenship of his or her surviving spouse or children. 2. Loss of Irish citizenship by a person shall not of itself affect the citizenship of his or her spouse or children. No effect of loss of nationality by a parent on the nationality position of children can also be observed in Mexico, where this is stated expressly in art. 29 Ley de nacionalidad ("La perdida de la nacionalidad mexicana por naturalizacion exclusivamente afectara a la persona sobre la cual recaiga la resolucion respectiva"). C.
Difficulties
In some countries loss of nationality by the parents causes, in principle, loss of nationality by their minor children. In other countries this is often only the case if
260
Loss of Nationality: A Critical Inventory
a court has given consent to this consequence. In still other countries, the loss by the parents does not influence the nationality position of the children at all. Insofar as the loss of the nationality by the parents occurred on a ground of loss which was introduced because it was considered to be an indication of the loss of a genuine link between the parent and the state involved, it is not suprising that children are included in this loss. Where the parent does not have a relevant link with the state involved anymore, it is indeed less likely that his minor children will develop relevant links with the state in question. The situation is different, of course, if the parent lost his nationality as a sanction for his behavior (e.g., voluntary military service to another state; behavior seriously prejudicial to the interests of the state). It is, however, a general problem whether a parent should have the power at all to determine directly or indirectly the nationality position of his children. The power of parents to represent their minor children is generally restricted in specific cases (such as making a last will or the sale of immovables owned by the child). Representation in nationality matters should perhaps be similarly restricted.
IX. RENUNCIATION OR RELEASE205 A. General Remarks: Treaties In a separate article the ECN deals with loss of nationality at the initiative of the individual. Art. 8(1) states that each state party shall permit its nationals to renounce their nationality, provided they do not thereby become stateless. An exception is allowed however, in case of nationals who do not have their habitual residence abroad. The right given by art. 8 to renounce a nationality is expansive. The explanatory report states the following: It is not acceptable under Article 8 to deny the renunciation of nationality merely because persons habitually living in another State still have military obligations in the country of origin or because civil or penal proceedings may be pending against a person in that country of origin. Civil or penal proceedings are independent of nationality and can proceed normally even if the person renounces his/her nationality of origin. It was already mentioned above that art. 7(2) allows a state party to provide for the loss of nationality of children of a parent who has lost the nationality because of a ground mentioned in art. 7(1) (except in the cases of sub c and d). Art. 8 does not contain a corresponding paragraph. Therefore I conclude that the Convention does not allow the renunciation of a nationality by a parent to have consequences for the nationality of his children. According to art. 16(1 )(c) of the Netherlands Nationality Act, a renunciation of Netherlands nationality by a parent also causes 205
Gerard-Rene de Groot, Staatsangehorigkeitsrecht im Wandel, o.c., 287-290. 261
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the loss of nationality by his minor children, except in the case where the other parent retains Netherlands nationality. This provision conflicts with the Convention. Therefore, upon ratifying the Europena Convention on Nationality the Netherlands made an 'interpretative declaration' (in fact a reservation) that makes it possible for the Netherlands to maintain this ground for loss.206 The declaration states: With regard to Article 7, paragraph 2, of the Convention, the Kingdom of the Netherlands declares this provision to include the loss of the Dutch nationality by a child whose parents renounce the Dutch nationaliity as referred to in Article 8 of the Convention. A completely different point is whether a state can allow renunciation of nationality if the consequence would be statelessness of the person involved. The Council of Europe's Recommendation 99(18), Part C, sub a and b, underscores that this would be unacceptable: (a) Each State should ensure that the renunciation of its nationality will not take place without the possession, actual acquisition or guarantee of acquisition of another nationality. Where another nationality is not acquired or possessed, States should provide that the renunciation is without effect. (b) When a State requires persons to lose their previous nationality in order to acquire its nationality, this State should grant its nationality, even if the previous one is not immediately lost. The States concerned, if necessary, should agree on the modalities of the application of this provision. In several other international instruments the right to renounce a nationality under certain circumstances was already stressed. Art. 6 of the 1930 Hague Convention: Without prejudice to the liberty of a State to accord wider rights to renounce its nationality, a person possessing two nationalities acquired without any voluntary act on his part may renounce one of them with the authorisation of the State whose nationality he desires to surrender. This authorisation may not be refused in the case of a person who has his habitual and principal residence abroad, if the conditions laid down in the law of the State whose nationality he desires to surrender are satisfied." Art. 12(2) of the 1930 Hague Convention: The law of each State shall permit children of consuls de carriere, or of officials of foreign States charged with official missions by their Governments, to become divested, by repudiation or otherwise, of the nationality of the State in which 206
262
Against the declaration, see the Permanent State Committee for Private International Law in an opinion given on 27 March 1999; and Gerard-Rene de Groot, Migrantenrecht 1999, 21. Cf. art. 22(1 )(3) B and art. 25(3) L.
Loss of Nationality: A Critical Inventory
they were born, in any case in which on birth they acquired dual nationality, provided that they retain the nationality of their parents. Art. 7(1 )(a) of the 1961 Convention on the Reduction of Statelessness: If the law of a Contracting State permits renunciation of nationality, such renunciation shall not result in loss of nationality unless the person concerned possesses or acquires another nationality. Art. 2 of the 1963 Convention on Reduction of Cases of Multiple Nationality: 1. A person who possesses the nationality of two or more Contracting Parties may renounce one or more of these nationalities, with the consent of the Contracting Party whose nationality he desires to renounce. 2. Such consent may not be withheld by the Contracting Party whose nationality a person of full age possesses ipso jure, provided that the said person has, for the past ten years, had his ordinary residence outside the territory of that Party and also provided that he has his ordinary residence in the territory of the Party whose nationality he intends to retain. Consent may likewise not be withheld by the Contracting Party in the case of minors who fulfill the conditions stipulated in the preceding paragraph, provided that their national law allows them to give up their nationality by means of a simple declaration and provided also that they have been duly empowered or represented. The 1977 Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality changed the first sentence of art. 2(2) of the 1963 Convention to read as follows: Such consent may not be withheld by the Contracting Party whose nationality a person of full age possesses ipso jure provided that the said person has his ordinary residence outside the territory of that Party. Art. 3 of the 1963 Convention on Reduction of Cases of Multiple Nationality: The Contracting Party whose nationality a person desires to renounce shall not require the payment of any special tax or charge in the event of such renunciation. Council of Europe Resolution (77)13 on the Nationality of Children Born in Wedlock (adopted by the Committee of Ministers on 27 May 1977 at the 271st meeting of the Ministers' Deputies): The Committee of Ministers recommends to governments of Member States: ... 2. to insert provisions in their internal legislation for the purpose of avoiding dual nationality resulting either directly or indirectly from descent or resulting from the place of birth. To this end, they should, as minimum: 263
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a. give the right to their nationals having another nationality to renounce their nationality; b. permit their nationals having another nationality to make a declaration in favor of their nationality; consequently, to insert provisions according to which their nationals having made a declaration in favor of another nationality which they possess equally, shall lose their nationality automatically. They may in addition provide that their nationals of more than 22 years of age, possessing equally another nationality, and who have not made a declaration in favor of one or the other of their nationalities, may be summoned according to the previous paragraph to make a declaration within a time-limit which shall not be shorter than six months for one or the other nationality and that they, failing to do so within that time-limit, shall automatcally lose the nationality of the state that summoned them. B. National Provisions Some states always allow a renunciation of their nationality if a national also possesses another nationality, even in case of residence within the country. This applies to Luxembourg (art. 25) and the Netherlands (art. 15(b)),207 for persons of full age, and for Portugal (art. 8). In Belgium until 1991 the renunciation, for male persons, was generally subject to authorization by the King if the person involved still had military obligations (art. 22(2)).208In contrast with Netherlands law, Belgium also allows renunciation if the national involved does not yet possess another nationality, but will acquire another nationality after the renunciation. In several other states multiple nationals may renounce the nationality of the country involved if the national in question lives abroad (for a certain period). This applies for Austria (par. 37(2): ordinary residence outside the territory of the Republic for a continuous period of not less than five years), Italy (art. 11(1)), and Ireland (sec. 21(1)). Ireland makes an exception to this rule of minor importance in sec. 21(2), which specifies that an Irish citizen may not, except with the consent of the Minister, renounce Irish citizenship under this section during a time of war as defined in Article 28(3)(3) of the Irish Constitution. A similar condition can be found in sec. 12(4) GB: 3. The Secretary of State may withhold registration of any declaration made in 207
208
264
Since 1985, renunciation is a right for every (dual) national. Since 1936, every national of full age could renounce Netherlands nationality if he acquired these nationalities without his own will and had his residence abroad. Previously renunciation was only possible in circumstances exhaustively listed (art. 6(1) Civil code 1838; art. 9 Act 1892). Before 1985, Belgian nationality law allowed renunciation only in cases exhaustively listed (art. 6, 12, 14 Act 1909; art. 4, 5, 18 quater and 21 Act 1932). On military service and the possibility of renunciation, see the paper of Stephen Legomsky, this volume.
Loss of Nationality: A Critical Inventory
pursuance of this section if it is made during any war in which Her Majesty may be engaged in right of Her Majesty's government in the United Kingdom. This condition is not in conformity with the ECN in cases where the national involved lives outside the UK. In Germany par. 26 determines209 that a German may renounce his nationality if he also possesses another nationality. The renunciation must be declared in written form and requires the consent of the authorities. The consent may not be granted to: (a) government officials, judges, members of the armed services, and other persons appointed to public duties as long as their term of office is not terminated, except for volunteers; and (b) persons subject to military duty unless the Federal Minister of Defense has declared that he raises no objections against the release. If the person involved has had permanent residence in a foreign country for at least ten years, and he has performed mandatory military service in one of the countries of which he is a citizen, the consent will be granted. In Germany, a release is also possible for a mono-national who will acquire another nationality after the release. Austria and Italy also allow, under certain circumstances, renunciation in case of residence within the country. Par. 37(1) A formulates the following conditions: (2) no criminal procedure or execution of a criminal sentence is pending in Austria for an offence punishable with more than six months of imprisonment; (3) a male person is not a member of the Federal Armed Forces; and (a) has not yet passed the age of sixteen nor the age of thirty-six; (b) has fulfilled the regular military service or the regular civil service; (c) has been found unfit for military service by the Recruiting Commission or has been declared permanently unfit for any kind of civil service by the competent administrative physician; (d) has been dispensed from recruitment to the Federal Army for reasons of mental illness or mental disorder; or (e) has fulfilled the military obligations or in their place service obligations in another state of which he is a national and therefore is dispensed from regular military service or regular civil service on the basis of a bilateral agreement or of an international covenant. Italy obviously also allows renunciation of Italian citizenship during residence in Italy for children whose adoption by Italian parents is revoked (art. 3(4)) and for children who acquired Italian nationality as a consequence of the acquisition or recovery of Italian nationality by a parent during their minority (art. 14(1)). In Turkey, art. 20 prescribes the permission of the Council of Ministers for a renunciation. General conditions are that the applicant is an adult and has full legal capacity and possesses or will acquire a foreign nationality. Art. 27 gives certain 209
According to Sturm, Nr. 118, these provisions do not play an important role in practice. 265
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categories of children the right to renounce Turkish citizenship within a period of two years before they reach the age of majority. Art. 28 gives women who acquired Turkish nationality by marriage the possiblity to renounce this nationality within three years after the dissolution of the marriage.210 In Canada sec. 15(1) bill C-16211 states: The Minister shall, on application, allow a citizen to renounce citizenship if the citizen (a) is a citizen of a country other than Canada or, if the application is accepted, becomes a citizen of another country; (b) is not a minor; (c) is not prevented from understanding the significance of renouncing citizenship by reason of the person having a mental disability; and (d) resides outside Canada. The second subsection makes it possible for the Minister to waive the conditions of (c) and (d) if "there are compassionate grounds for doing so." The approach in France is completely different. Renunciation is possible only in the cases listed exhaustively in the French Code Civil (art. 18-1, 19-4, 20-2, 22-3, 23-5). In Spain also no general regulation of renunciation exists. Art. 23 SP allows renunciation of Spanish nationality only in specific cases. In the United States, renunciation of nationality is possible according to sec. 349(a)(6) IN A. The declaration of renunciation must be a voluntary action and the result of a free and "intelligent choice."212 A variation on the renunciation of nationality is the release of a nationality by the state on application of an individual.213 This construction is, for example, practiced in Denmark (par. 9(1)): 1. The Minister for the Interior or anyone so authorised by him may release a person who is, or wants to become, a foreign national from such person's relations to Denmark in terms of nationality. In the latter case such release shall take place on condition that the petitioner becomes a national of another country by a certain deadline. Other Scandinavian countries have the same construction: 9 FIN, 9 gr. 1C, 9 N, 9 SW. In all Scandinavian countries, release cannot be denied to a person who is a foreign national and who resides permanently in another country. If a person with 210 211 212 213
266
Sevig, Nr. 98, 99, 102-104. Compare sec. 9 Citizenship Act. Acheson v. Murakami, 176 F.2d 953, 966 (9th Cir. 1949). It has to be admitted that the constructions used by Turkey and Canada also can be described in terms of release.
Loss of Nationality: A Critical Inventory
residence inside the country applies for release, the Ministry has a margin of discretion and can for example, require the previous fulfillment of military service obligations.214 Art. 42 SWIT is similar, but Switzerland restricts the possibility of release to cases where the national involved lives abroad. In Germany release is possible, but is not given to (see art. 22(1)): 1. government officials, judges, members of the armed services and other persons appointed to public duties as long as their term of office is not terminated except for volunteers, 2. persons subject to military duty unless the Federal Minister of Defence has declared that he raises no objections against the release. ... An exception to paragraph 2 is allowed if the person has had permanent residence in a foreign country for at least ten years or has performed mandatory military service in one of the countries of which he is a citizen. Compare as well art. 14(2) GR which provides that a Greek national who also has a foreign citizenship may lose the Greek citizenship upon application. In this case the loss of the Greek citizenship occurs from the date that the application is accepted.215 Although art. 34(2) of the Polish Constitution mentions that a Polish citizen cannot be deprived of his nationality, but can only renounce it, art. 32 of the bill on Polish nationality which is pending in parliament uses the construction of release. In order to gain release, a citizen has to lodge a written application to the president, who may render his consent if documents are presented which give evidence on: 1) the acquisition of a foreign nationality or a promise to acquire one; 2) the fulfillment of fiscal and military duties; 3) the fulfillment of obligations resulting from the decision of a court or any other competent authority; 4) the fulfillment of obligations in relation to the "alimony fund of the Social Security Office."216 Art. 32(3) mentions that the president may refuse to give his consent to renounce Polish nationality, if such refusal is in the interest of the defense and security of the state. In art. 32(4) it is stressed that the renunciation may not cause statelessness, unless the person concerned has already received a promise to acquire a foreign nationality. It is, of course, obvious that these conditions do not conform with art. 8 ECN. Art. 21 MOL allows renunciation of Moldovan nationality, but art. 22 MOL provides that the renunciation has to be approved, which leads to the conclusion that it is better to classify this construction as release. The approval shall not be given if the person involved was called up to perform or is currently performing 214
215
216
See for Denmark, Torben Steffensen, Danemark, Nr. 37, in: Charles L. Closset/ Michel J. Verwilghen, Jurisclasseur Nationalite, Paris, loose-leaf edition. Zoe Papassiopi-Passia, The Greek Nationality Law in a Nutshell, Revue Hellenique de Droit International 1998, 512, 513. In the original text: "fundusz alimentacyjny Zakladu Ubezpieczen Spolecnych." In Poland, alimony or other related allowances are not paid to the entitled person directly, but through an obligatory fund. Information provided by Marcin Pruss. 267
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active or alternative military service, provided that this person resides lawfully and habitually in Moldova (art. 22(b) MOL). This condition is in accordance with art. 8 ECN. Art. 22(a) MOL makes it possible for release to be granted in order to acquire another nationality. C.
Difficulty
The question has to be raised whether renunciation should be possible not only for dual nationals, but also for a mono-national who wants to acquire the nationality of another state, which requires the renunciation as a condition for the grant of nationality by naturalization. In other words: should the Belgian and German example be followed? There is, in my opinion, absolutely no need to do that. If states would allow the lodging of a conditional declaration of renunciation (or would give a conditional release of nationality) the same result could be reached, without any period within which the person involved is formally stateless. D. Trends Rather than giving permission to renounce only in special cases, states generally provide for a general regulation of renunciation. Further, the restriction for persons subject to military service obligations is disappearing gradually (see Belgium; see ECN). The same can be observed in respect of the restriction forbidding renunciation by persons against whom criminal procedures are running. It is more realistic to solve possible problems by provisions that grant criminal jurisdiction to a country, inter alia, if the person involved had the nationality of that country at the time that the crime was committed. Many countries still do not permit renunciation in case of residence within the country. Increasingly, countries respect the view of a dual citizen, however, if he wants to renounce the nationality of the state of residence. This is particularly important if the other national state requires its citizens who also possess another nationality to make a choice between their nationalities.217
X. MARRIAGE: No CONSEQUENCES FOR NATIONALITY A. General Remarks: Treaties Art. 4(d) ECN provides that neither marriage nor the dissolution of a marriage between a national of a state party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse. Some elements of this rule could already be found in older conventions. 217
268
See for example, Japan art. 14-16; Luxembourg art. 25(7), and in the past, Italy (art. 5(2) of Act Nr 123 of 21 April 1983).
Loss of Nationality: A Critical Inventory
Art. 8 of the 1930 Hague Convention: If the national law of the wife causes her to lose her nationality on marriage with a foreigner, this consequence shall be conditional on her acquiring the nationality of the husband. Art. 9 of the 1930 Hague Convention: If the national law of the wife causes her to lose her nationality upon a change in the nationality of her husband occurring during marriage, this consequence shall be conditional on her acquiring her husbands nationality. Art. 1 of the 1957 Convention on the Nationality of Married Women: Each Contracting State agrees that neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife. Art. 2 of the 1957 Convention Nationality of Married Women: Each Contracting State agrees that neither the voluntary acquisition of the nationality of another State nor the renunciation of its nationality by one of its nationals shall prevent the retention of its nationality by the wife of such national. Art. 5(1) of the 1961 Convention on the Reduction of Statelessness: If the law of a Contracting State entails loss of nationality as a consequence of any change in the personal status of a person such as marriage, termination of marriage, legitimation, recognition or adoption, such loss shall be conditional upon possession or acquisition of another nationality. Art. 6 of the 1961 Convention on the Reduction of Statelessness: If the law of a Contracting State provides for loss of its nationality by a person's spouse or children as a consequence of that peson losing or being deprived of that nationality, such loss shall be conditional upon their possession or acquisition of another nationality. B. National Provisions In the past almost all nationality acts applied the so-called unitary system218 of nationality within a family. A foreign woman who married a national generally 218
In French "systeme unitaire." See Bernard Dutoit, La nationalite de la femme mariee, Band I: Europa (Genf 1973); Band II: Afrique (Genf 1976); Band III: Amerique, Asie, Oceanie (Genf 1980) and Bernard Dutoit, Nationalite et mariage: leur interaction dans le droit compare de la nationalite, in: Verwilghen, Nationalite, Brussel 1984, 443-474.
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acquired the nationality of her husband. By marrying a foreigner, a woman lost her original nationality.219 Therefore, man and wife possessed one and the same nationality, which was, in ius sanguinis countries, also transferred to their children. If a man acquired another nationality during the marriage and therefore lost his original nationality, his wife (and in most cases their children) also followed this new nationality position. A disavantage of this system was that in most countries women also used to lose their nationality if they married a stateless person or if their husband became stateless during the marriage. In order to avoid this disadvantage, some states provided that women lost their nationality only if they acquired the nationality of their husbands.220 This policy was encouraged later on by the 1930 Convention on Nationality concluded at The Hague and initiated by the League of Nations. Art. 8 ff. of that Convention provided that women would not lose their nationality by or during the marriage if they would become stateless. These provisions were inter alia a reaction to the fact that, after the revolutions of 1918, the number of stateless persons increased. Already during the 1920s some countries had made an additional step and given to women an even more independent position by providing that marriage did not influence the nationality of women. The Soviet Union, Bulgaria, and France221 were the first states to do this. Some other states made it possible for women to retain their own nationality after marriage by making a declaration.222 The next step was of course to allow women to transmit their own nationality to all of their children. Before World War II, only the Soviet Union provided for that possibility in all cases.223 Since 1927, the French nationality act provided for the transmission of the French nationality of a French mother to all children born on French territory. After World War II, several countries in Eastern Europe also gradually recognized a completely independent position of women in nationality 219
220
221
222
223
270
See for example around 1900: Austria (par. 32 ABGB), Belgium (art. 17 sub 3 Cc), Denmark, Germany (art. 13 Act 1870), Greece (art. 25 Cc 1856), Luxembourg (art. 17 sub 3 Cc), Netherlands (art. 5 Act 1892), Spain (art. 22 Cc), Sweden (art. 6 Act 1894), Switzerland, Turkey (compare: art. 7 Act 1869), United Kingdom (sec. 10 sub 1 Act 1870). The first country to do this was (as far as I know) Bulgaria (art. 25; this provision was very liberal; no loss ex lege, but marriage was a ground for renunciation on the initiative of the woman involved, see Tratnik, p. 125). See furthermore: France (art. 19), Italy (art. 14), Norway, Portugal (art. 22 sub 4); see Andre Weiss, Traite theorique et pratique de droit international prive, vol. I (La nationalite), 2nd edition, Paris 1907, 24. Austria (since 1925); Denmark (since 1925), Finland (since 1927), Greece (since 1926), Iceland (only loss if residence abroad), Netherlands (since 1937, but with retroactivity to 1893), Norway, Sweden (since 1924), United Kingdom (since 1934). Soviet Union in 1918. Bulgaria: see previous footnote. Since 1927 until 1938, loss of nationality by a French woman marrying a foreigner occurred exclusively if the spouses were living abroad and the nationality of the husband was acquired; since 1938, no longer any loss by marriage. Austria (since 1947); Belgium (since 1926); Greece (since 1955); Luxembourg (since 1934); Switzerland (since 1941), United Kingdom (since 1934). Already since 1918/1924, see Tratnik, 59-68.
Loss of Nationality: A Critical Inventory
matters and also allowed the transmission of the nationality to the next generation under the same conditions as men, following the example of the Soviet Union.224 An important development was the 1957 Convention on the Nationality of Married Women, which was initiated by the United Nations. This was the first multinational convention aimed to create a completely independent nationality position for married women (a so-called dualist system), although the Convention nevertheless prescribed the facilitation of the acquisition of the nationality of her husband by a married woman. Gradually most countries granted to married women such an independent nationality position and eventually also the possibility to transmit their nationality under the same conditions as men to their children. A consequence of this development is that almost all countries examined lack provisions dealing with the nationality position of women after the loss of the nationality involved by their husband, because these consequences do not exist. Nevertheless, in some countries some provisions still deal with the position of married women. In France art. 21-1 underscores that a marriage does not affect the acquisition or loss of French citizenship. A similar provision can be found in the Greek nationality act (art. 4). In Ireland even two provisions deal with this issue. Sec. 22 IRL provides: 1. The death of an Irish citizen shall not affect the citizenship of his or her surviving spouse or children. 2. Loss of Irish citizenship by a person shall not of itself affect the citizenship of his or her spouse or children. Sec. 23 IRL underscores: A person who marries an alien shall not, merely by virtue of the marriage, cease to be an Irish citizen, whether or not he or she acquires the nationality of the alien. These provisions can be understood as a reaction to the previous legal situation, but are strictly speaking, superfluous. In Turkey art. 19 still declares that a Turkish woman who acquires, by her marriage with a foreigner, her husband's nationality loses Turkish nationality if she makes a formal declaration to the Turkish authorities that she accepts the acquisition of her husband's nationality. According to Turkish nationality law, a foreign woman who marries a Turkish man can acquire Turkish nationality by lodging a declaration of option. If a woman acquires Turkish nationality in this way, and if the marriage is annulled, her intention and good faith are taken into consideration. If Turkish institutions believe that it is not her fault that caused the annulment, then she continues to hold Turkish nationality.225 224
225
Albania 1946, Bulgaria 1948, German Democratic Republic 1954, Hungary 1957, Yugoslavia 1945, Poland 1951, Romania 1948, Czechoslovakia 1949. Information provided by Sadrettin Karahocagyl, Turkish Interior Ministry, The General Directorate of Civil Status and Nationality Issues, Head of Nationality Department.
271
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C. Trend The trend is obvious. Marriage with a foreigner is gradually disappearing as a ground for loss of nationality.
XI. Loss OF A CONDITIONAL NATIONALITY In some cases a conditional nationality is acquired. If in such a case the (negative) condition is fulfilled, the nationality is often lost again. An example of a conditional nationality is the German nationality acquired by some children of foreigners living on German territory in case of birth in Germany. This nationality can be lost again if these children do not renounce their foreign nationality acquired iure sanguinis between their 18th and 23rd birthday. This legal construction was already described above in Part 5.5. Other cases of acquisition of a conditional nationality can be observed (a) if a foundling acquires the nationality of a country; or (b) if a person born on the territory of a country acquires the nationality because otherwise he would be stateless. In both cases, legislators tend to provide that the nationality acquired in this way is lost again if it is discovered later that the child possesses another nationality. A. Foundlings Art. 6(l)(b) ECN prescribes that a foundling found in the territory of a state has to acquire the nationality of that state if he otherwise would be stateless. The wording of this provision is drawn from art. 1 of the 1961 Convention on the Reduction of Statelessness. One has to realize that this provision is not restricted to newborn infants - in contrast to, for example, sec. 1(2) British Nationality Act - but applies to every child in the sense of the Convention, i.e., every person below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. If later on, but during his minority, it is discovered who the parents of the child are, and the child derives a nationality from these parents or acquired a nationality because of his place of birth, the nationality acquired because of the foundling provision may be lost. This is allowed by art. 7 ( l ) ( f ) ECN. The nationality legislation of the Netherlands is in conformity with art. 6(l)(b) ECN. Art. 3(2) NL provides that a child shall be deemed to be the child of a national if he was found on the territory of the Netherlands, the Netherlands Antilles or Aruba, or on a ship or aircraft registered in one of these countries. In this case he thus obtains the Netherlands nationality on the basis of art. 3( 1) NL. This presupposition (praesumptio iuris sanguinis) is not absolute. If it becomes apparent, within five years from the day on which the child was found, that he does not possess Netherlands nationality, but instead a foreign nationality by birth, the nationality of the Netherlands will be lost. But in the case of potential Statelessness he keeps this nationality. 272
Loss of Nationality: A Critical Inventory
France (art. 19), Moldova (art. 11(2)), Portugal (art. 14), and Switzerland (art. 6(3)) provide that the nationality acquired by a foundling is lost if, during his minority, it is discovered that he is the child of foreign parents, and if he does not thereby become stateless. These provisions correspond precisely with art. 6(1 )(b) ECN. In Austria (par. 8(1)), Belgium (art. 10(2)), Denmark (art. 1(1)), Finland (art. 1), Germany (par. 4(2)), Greece (cf. art. 1(2)), Iceland (art. 1), Italy (art. 1(2)), Luxembourg (art. 1(2)), Norway (art. 1), Spain (art. 17(d)), Sweden (art. 1), and the United Kingdom (sec. 1(2)), nationality is also lost by a foundling if his descent is discovered after majority. That conflicts with the ECN. With respect to art. 6(1 )(b) ECN, Austria made a declaration: "Austria declares to retain the right that foundlings found in the territory of the Republic are regarded, until proven to the contrary, as nationals by descent only if they are found under the age of six months." It is obvious that this is not a declaration with a interpretive character but a reservation. The aim of the Convention is meant to cover cases where older children are "found" and the circumstances do not allow for the discovery of their identification, in particular the descent of the children involved. An early draft version of the European Convention still included a provision on foundlings inspired by the above-mentioned provision of the British Nationality Act, which was restricted to newborn infants. Later the provision on foundlings was revised. The final text is therefore definitely not restricted to very young children. The Austrian reservation is inspired by art. 8(1) of the Austrian Nationality Act. B. Stateless Children According to art. 6(2) ECN, each state party shall provide in its internal law for its nationality to be acquired by persons born on its territory who would otherwise be stateless. This rule is repeated in Council of Europe Recommendation R 99 (18) in Part IIA sub b. The nationality of the country of birth has to be attributed either ex lege at birth or subsequently to children who remained stateless upon application. Of the countries covered in this chapter, Belgium, Canada, Finland, France, Greece, Ireland, Italy, Luxembourg, Mexico, Moldova, Poland, Portugal, Spain, Turkey, and the United States opted for the first mentioned possibility. In most of these countries, a provision also can be found dealing with the loss of this nationality if it is later discovered that the person involved was not stateless.226 Nevertheless, there are also countries where this ground for acquisition is not linked with a conditional ground for loss. That is, for example, the case in Moldova. Art. 11(2) MOL provides that a foundling found on the territory of Moldova shall be considered as a citizen, unless otherwise proven before the age of 18. The provision 226
However, in Greece no such provision exists. Information provided by Zoe Papassiopi-Passia in a letterof 16 January 2001. 273
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of art. ll(l)(b) in favor of potentially stateless children is not qualified in a similar way. Moreover, in ius soli countries (Canada, Ireland, Mexico, and the United States), the nationality of the country will, of course, not be lost by a national born on the territory because of the fact that another nationality is acquired iure sanguinis.
XII. Loss OF NATIONALITY BECAUSE OF RECOGNITION OR LEGITIMATION OF A CHILD BY A FOREIGNER A. General Remarks: Treaties Art. 16 of the Hague Convention of 1930 provides: If the law of the State, whose nationality an illegitimate child possesses, recognises that such nationality may be lost as a consequence of a change in the civil status of the child (legitimation, recognition), such loss shall be conditional on the acquisition by the child of the nationality of another State under the law of such State relating to the effect upon nationality of changes in civil status. Art. 5(2) of the 1961 Convention on the Reduction of Statelessness contains a related provision: If, under the law of a Contracting State, a child born out of wedlock loses the nationality of that State in consequence of a recognition of affiliation, he shall be given an opportunity to recover that nationality by written application to the appropriate authority, and the conditions governing such application shall not be more rigorous than those laid down in paragraph 2 of Article 1 of this Convention. Art. 1(2) in turn provides: A Contracting State may make the grant of its nationality [on application] ... subject to one or more of the following conditions: (a)
(b)
(c)
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that the application is lodged during a period, fixed by the Contracting State, beginning not later than at the age of eighteen years and ending not earlier than at the age of twenty-one years, so, however, that the person concerned shall be allowed at least one year during which he may himself make the application without having to obtain legal authorization to do so; that the person concerned has habitually resided in the territory of the Contracting State for such period as may be fixed by that State, not exceeding five years immediately preceding the lodging of the application nor ten years in all; that the person concerned has neither been convicted of an offence against national security nor has been sentenced to
Loss of Nationality: A Critical Inventory
(d)
imprisonment for a term of five years or more on a criminal charge; that the person concerned has always been stateless. B. National Provisions
In Part X(B) of this chapter, it was mentioned that in the past almost all countries applied the so-called unitary system in respect of nationalities in a family. Women followed the nationality of their husbands. Only men could transmit their nationality to the children born in wedlock. In respect of children born out of wedlock, the most common regulation was that these children derived their nationality from their mother, but if (by recognition or legitimation) family relationships also existed with the father, his nationality was decisive.227 As a consequence, recognition or legitimation of a child by a foreigner was a ground for loss of the nationality derived from the mother if the recognition or legitimation had as a legal consequence the acquisition of the nationality of the father.228 In almost all countries included in this chapter, the equal treatment of men and women and of children born in wedlock or outside wedlock is now realized. As a consequence, most nationality statutes no longer include recognition or legitimation by a foreigner as a ground for loss.229 An exception is art. 16 NL, where it is still provided that a minor shall lose his Netherlands nationality by recognition, legitimation, or adoption by an alien if he thereby acquires the nationality of the alien or already possesses it. C. Trend The trend is obvious. In a system where the nationality of child can be derived iure sanguinis a matre et a patre, recognition and legitimation should not be maintained any longer as grounds for loss of nationality. This ground for loss conflicts with the equal treatment of men and women and with equal treatment of children born within or out of wedlock. XIII. LOSS OF NATIONALITY: CONCLUSIONS
Certain grounds for loss of nationality are included in the nationality statutes of several countries, because the countries involved are of the opinion that certain facts indicate that no genuine link between this person and the state continues to exist. This is the case if voluntary acquisition of a foreign nationality is mentioned as a 227 228
229
See Gerard-Rene de Groot, Staatsangehorigkeit, 316-318. Yves Gonset, La nationalite de 1'enfant naturel en droit compare; etude des legislations europeennes, Geneva 1977. For example, Greece abolished this ground for loss (art. 18 of Act 3370/1995) by art. 11 Act 1438/1984. Information provided by Zoe Papassiopi-Passia in a letterof 16 January 2001.
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ground for loss and also if permanent residence abroad is a reason for loss of nationality. Of course, one can debate whether voluntary acquisition of a foreign nationality always indicates that the ties with the state of origin are weakened to an extent which legitimates the loss of nationality. Moreover, it is clear that not everybody who is living outside the territory of the state of his nationality has lost his ties with his country. But generally speaking, one can conclude that, in order to avoid large numbers of people possessing the nationality of a state without having a genuine link with the state involved, it is advisable either to provide for at least one of these two grounds for loss or to limit the transmission of the nationality in case of birth abroad to the first or the second generation born outside the country. It is noteworthy nevertheless that some states (like Ireland, Italy, and Poland) do not apply at least one of these means to all nationals in order to avoid a transmission of their nationality in perpetuum. Such a perpetuation, after any genuine link has been lost, tends to conflict with the character of the nationality as such. Of course, many countries also offer a wide possibility of renunciation of the nationality by an individual or release of nationality by the state on application of a person. But that possibility is not enough to avoid the possession of the nationalities involved by persons without serious links to the state involved. Certainly, a renunciation of a nationality gives, under normal circumstances, an indication of the fact that the person involved has the feeling that his links with the state of origin have declined below the threshold of genuineness. Only in very exceptional circumstances will a genuine link continue to exist in spite of renunciation. On the other hand, it is not difficult at all to imagine cases where no link exists anymore, but where the national does not take the initiative to renounce, because of complete ignorance that he possesses the nationality involved, laziness, or simply the feeling that one never knows whether the nationality involved could be useful in the future. In some other cases, the loss of nationality occurs not because the facts involved manifest the loss or inexistence of a genuine link, but - at least partly - as a sanction because of the behavior of the national involved. That is, in my opinion, the case when the nationality is lost because of voluntary military service elsewhere or because of a behavior seriously prejudicial to the vital interests of the state involved. Nonetheless, some discussion on the character of these grounds for loss is possible. One could argue that the behavior involved illustrates that the person in question lost, or even deliberately cut, the ties with the state of his nationality. But it seems to me that this is not the leading opinion anymore. In this context, one should pay attention to the fact that art. 7 ECN accepts these two grounds of loss, but does not accept any consequences for the nationality of the (still minor) children of the person involved. The sins of the parents may not have any consequences for the children. The loss of nationality for these reasons does not therefore, according the ECN, immediately imply that these children now lack serious ties with the country involved. This view underscores that the grounds for loss in question are seen as a sanction and not as an indication of the loss of a genuine link. A particular category is the loss of nationality by revocation of a naturalization 276
Loss of Nationality: A Critical Inventory
decree because of fraud or other similar acts. It is a reaction to the behavior of a person who acquired the nationality by naturalization. If the acquisition would not have taken place absent the fraud, the revocation is based on the conclusion that the criteria which are used to decide on the naturalization request were not in fact fulfilled. A difficulty in respect of this ground of loss is that if many years have passed since the acquisition, in the meantime an obvious genuine link between the person involved and the state where the naturalization took place can be developed. The loss of nationality by revocation is then, more or less, a penalty. Art. 7 ECN accepts this ground for loss even in cases where statelessness would be the consequence. Loss of nationality and even statelessness is also accepted for the children of the persons involved. This is problematic if the fraud is only discovered after a very long period and the children were born after the naturalization of the parent who committed the fraud. A special remark has to be made on the loss of a nationality because of loss of the family relationship which was the basis for the acquisition of a certain nationality. As such, this ground for loss is a logical correction of the grounds of acquisition. If a nationality is attributed to a child because of the descent of a certain person, it is in principle acceptable that this nationality is again lost if the family relationship involved is lost. Nevertheless, one has to realize that the person involved can already have developed close factual ties with the state whose nationality he possessed until the family relationship was annulled. It seems to me that it is therefore absolutely necessary to limit the period of time during which this ground for loss may be imposed. Art. 7 ECN accepts this ground for loss only if the person in question is still a minor. I have serious hesitation whether taking the age of majority as a limit is not considerably too long. Perhaps it would be better to put the period of limitation at for example, 10 years (the maximum period of residence mentioned in art. 6(3) ECN in respect of naturalization). An extremely difficult issue is whether (and if so, under which conditions) grounds for loss should have consequences for the children of those who lose the nationality involved. If the grounds for loss are based on the assumption that the parent does not have ties anymore with the state of the nationality involved, it is an acceptable assumption that his minor children also do not possess ties with the state involved. But again, it is not too difficult to imagine exceptions to this main rule. If the loss of the nationality by a parent has consequences for the children, such exceptional situations have to be regulated as well. On the other hand, it is very problematic to accept that loss of nationality by a parent never has consequences for his minor children if the nationality involved can be transmitted iure sanguinis without any limitation in case of birth abroad. Such a regulation would not promote that the nationality of the country involved always gives a serious indication of the existence of a genuine link with the state. A closely related issue is the question of how far parents should be able to influence the nationality position of their children. If parents lose their nationality because of lack of a genuine link, it can be accepted that their children follow this loss, in 277
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principle, ex lege. That children lose their nationality when the parents lose this status as a kind of penalty is, on the other hand, not acceptable. But should parents also be able to represent their children by acts which cause the loss of nationality by these children? I have severe hesitations on this point. Parents have the task to protect the interests of their children. They have to do this by, inter alia, representing their children in legal affairs. All jurisdictions provide that, in certain very important matters, parents need the consent of the court in order to be able to represent the children. In nationality affairs this construction is also chosen in some jurisdictions (for example, Germany). In some other jurisdictions, children cannot lose their nationality by acts of the parents or even by their own acts committed as a minor (for example, Ireland and Mexico). Both views are acceptable. Another acceptable solution is to provide that a child can lose his nationality by acts of his parent as a representative or by his own acts with the consent of the parent, but that the child can reacquire the lost nationality within a certain period after having attained the age of majority. This is an elegant solution, which could also be applied in case of ex lege loss of nationality by a minor as a consequence of the loss of nationality by a parent. A special case is the loss of nationality by a child because of the renunciation of this nationality by a parent. It has to be admitted that this can be, under certain circumstances, a manifestation of the loss of a genuine link with the state involved. But one has to raise the question whether such a voluntary act by a parent should have such extensive consequences for a child. Limiting such loss by the children to situations where a court has approved would be an acceptable solution. Loss without control and without the possibility of reacquisition after having attained the age of majority is highly questionable.
278
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TABLES Table I Loss of Nationality because of Voluntary Acquisition of Foreign Nationality (The table also indicates whether and when a country ratified chapter I of the 1963 Convention on the Reduction of Cases of Multiple Nationality, because of the selfexecuting effect of art. 1, which causes loss of nationality in case of voluntary acquisition of the nationality of another contracting state. Ratifications of the Second Protocol to the 1963 Convention are indicated as well.) Between the countries that ratified the Second Protocol, certain exceptions to art. 1 of the 1963 Convention are allowed. Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Poland Portugal Spain Sweden Switzerland Turkey United Kingdom United States
loss, with exc. (permission); rat. 1963 conv. in 1975 with reservations loss, with exc. (military service), rat. 1963 conv. in 1991 no loss; rat. 1963 conv. in 1972 loss no; but rat. 1963 conv. in 1965 and 2nd protocol in 1995 loss, with exc. (permission); rat. 1963 conv. in 1969 with reservations (rescinded 1975) no; but deprivation possible if no permission loss no, with exc. (naturalized citizens) no, with exc. (war) and rat. 1963 conv. in 1968 and 2nd protocol in 1995 loss; rat. 1963 conv. in 1971 no, with exc. (naturalized citizens) no, but deprivation possible loss; bill proposes loss with exc. 2nd protocol; rat. 1963 conv. in 1985 and 2nd protocol in 1996 loss no no loss, with many exc. (war, acquisition of specific foreign nationalities) Until 2002 loss; since 2002 no loss no no; but deprivation possible if no permission no no 279
G.-R. de Groot Table II Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Poland Portugal Spain Sweden Switzerland Turkey United Kingdom United States
280
Grounds for Revocation of Naturalization Decree non-renunciation of other nationality (within 6 years); fraud fraud; other fraud
fraud fraud
fraud; other fraud; other fraud; other fraud non-renunciation; under pending bill: fraud (within 12 years) fraud (within 10 years) fraud (within 15 years); other fraud (within 5 years) fraud fraud; other fraud or illegal acquisition
Loss of Nationality: A Critical Inventory
Table III
Loss of Nationality Because of Voluntary Foreign Military Service
Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Poland Portugal Spain Sweden Switzerland Turkey United Kingdom United States
ex lege may be classified as prejudicial behavior
if prohibition ex lege (if certain conditions are met) if prohibition
ex lege (in time of war; otherwise: if prohibition) may be classified as prejudicial behavior deprivation possible no, but bill proposes ex lege (if certain conditions are met)
if prohibition, only for naturalized citizens if prohibition
281
G.-R. de Groot Table IV Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Poland Portugal Spain Sweden Switzerland Turkey United Kingdom United States
282
Loss of Nationality Because of Serious Prejudicial Behavior acts against national interest in service of foreign state naturalized citizens: neglect of duties as citizen no no no behavior as foreigner; naturalized citizens: crimes no acts against national interest no naturalized citizens: disloyalty no naturalized citizens: neglect of duties as citizen; behavior as foreigner; crimes naturalized citizens: accepting foreign noble titles acts against vital interests of the state no no no no naturalized citizens: crimes no acts against national interest or reputation desertion from army; naturalized citizens: staying abroad after summons naturalized citizens: disloyalty; collaboration with enemy; crimes treason; levying war against nation (requires specific intent to relinquish citizenship)
Loss of Nationality: A Critical Inventory Table V Loss of Nationality Because of Lack of Genuine Link
(The countries of which the names are printed in bold have rules on the limitation of the transmission of their nationality in case of birth abroad.) Austria Belgium Canada
Denmark Finland France Germany
Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Poland Portugal
Spain Sweden Switzerland Turkey United Kingdom United States
no yes; declaration of continuation possible yes; declaration of continuation is, under conditions, possible yes; permission of retention possible yes; permission of retention possible yes; deprivation procedure no no yes; permission of retention possible naturalized citizens: deprivation procedure no yes; declaration of continuation possible naturalized citizens no yes; bill makes continuation possible yes; permission of retention possible no no yes; if exclusive use of other nationality yes; permission for retention possible no yes; deprivation procedure no no
283
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Table VI Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Portugal Spain Sweden Switzerland Turkey United Kingdom United States
284
Loss of Nationality Because of Loss of Family Relationship
yes yes: art. 8(4)
yes, art. 20-1 Cc
yes; see art. 3(3), loss because of revocation of adoption decree yes: art. 25(5) yes: art. 14, loss because of revocation of adoption decree yes: art. 14(1)
yes: no provision yes: art. 8 yes
Loss of Nationality: A Critical Inventory Table VII Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Poland Portugal Spain Sweden Switzerland Turkey United Kingdom United States
Loss of Nationality Because of Adoption by Foreign Parents
yes: art. 22(1 )(4)
yes: art. 27 yes: art. 27(2), after decision of the Minister of Interior
yes: art. 24(4) no: art. 30( 1) Ley de nacionalidad no yes: art. 16(l)(a)
yes: art. 8a(l)
no
285
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Table VIII Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Portugal Spain Sweden Switzerland Turkey United Kingdom United States
286
Loss of Nationality for Children When Parents Lose Nationality often often often often sometimes often no: sec. 22(2) often no: art. 29 Ley de nacionalidad deprivation: no (art. 23(3)); renunciation: sometimes (cf. art. 37) often often sometimes often often
Loss of Nationality: A Critical Inventory
Table IX Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Portugal Spain Sweden Switzerland Turkey United Kingdom United States
Renunciation of Nationality
under conditions if residence abroad; in exceptional cases in country yes release, if residence abroad; in exceptional cases also in country release release only in listed cases release, under conditions release, under conditions release if residence abroad (not in war time) if residence abroad; in exceptional cases also in country yes release, under conditions yes release yes only in listed cases release release, if residence abroad yes (not in war time) yes
287
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Table X
Loss of Nationality Upon Recognition/Legitimation of Child by Foreign Father
Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Poland Portugal Spain Sweden Switzerland Turkey United Kingdom United States
288
yes: art. 16(1 )(a)
Loss of Nationality: A Critical Inventory
Table XI Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Poland Portugal Spain Sweden Switzerland Turkey United Kingdom United States
Loss of Nationality by Foundling, if Descent is Discovered
yes: par. 8(1) yes: art. 10(2) no (ius soli) yes: art. 1(2) yes: art. 1(2) yes: art. 19: during minority yes: par. 4(2) cf. art. 1(2) yes: art. 1(2) yes: sec. 10 (deemed to be born in Ireland) (ius soli) yes: art. 1(2) yes: art. 2 no (ius soli) yes: art. 11(2): during minority yes: art. 3(2): within 5 years yes: art. 1(2) cf. art. 11 yes: art. 14: during minority art. 17(d) yes: art. 1(2) yes: art. 6(3): during minority art. 4(2) yes: sec. 1(2) no (ius soli)
289
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Table XII
Loss of Nationality for Stateless Persons Born on Territory, if Nationality is Discovered
(The names of states that attribute their nationality to stateless children born on the territory are printed in bold. If a state applies generally the principle of acquisition of nationality iure soli, this is mentioned.) Austria Belgium Canada Denmark Finland France Germany Greece Iceland Ireland Italy Luxembourg Mexico Moldova Netherlands Norway Poland Portugal Spain Sweden Switzerland Turkey United Kingdom United States
290
yes: during minority no (ius soli)
yes no (ius soli)
no (ius soli) no
no
no (ius soli)
Loss of Nationality: A Critical Inventory
ANNEX I List of Nationality Statutes Austria
Belgium
Canada Denmark
Finland France Germany Greece
Iceland Ireland Italy Luxembourg Mexico
Staatsburgerschaftsgesetz 1965, Act of 15. July 1965, Bundesgesetzblatt 1965, 68. Stuck vom 11. August 1965, p. 1171, Nr. 250, most recently amended by Staatsburgerschaftsnovelle 1998, Bundesgesetzblatt I, Nr 124/1998, in force on 1 January 1999 Code de la nationalite beige/ Wetboek van de Belgische nationaliteit, Act of 28 June 1984, Moniteur belge/Belgisch Staatsblad, 12 July 1984, p. 10.095-10.114, most recently amended by Act of 1 March 2000, Moniteur belge/Belgisch Staatsblad 6 April 2000, in force on 1 May 2000 Act respecting Canadian citizenship, Act C-20 of 13 April 1976 Lov om dansk infodsret, Act Nr. 352 of 27 May 1950, Lov Tidende of 14 June 1950, most recently amended by Act Nr. 1102 of 29 December 1999 Act Nr. 401/68 of 28 June 1968, Finlands Forfattningssamling 1968, Nr. 401, p. 963, most recently amended by Act 482/1998, in force since 15 August 1998 Code civil, art. 17-33-2, most recently amended by Act 99-1141 of 29 December 1999, Journal Officiel Nr. 302 of 30, December 1999 Staatsangehorigkeitsgesetz, as amended by Act of 15 July 1999, Bundesgesetzblatt I 1999, p. 1618-1624 (Act on Greek Nationality), Act. Nr 3370/1955, Ephemeris tes Kyberneseos, Nr. 258 of 23 September 1955, most recently amended by Act 2623/1998, in force on 25 June 1998; Act 2647/1998 and Act 2790/2000 Log um Islenskan Rikisborgararett, Act Nr. 100 of 23 December 1952, most recently amended by Act Nr 82 of 16 June 1998 Irish Nationality and Citizenship Act, Act Nr. 26 of 17 July 1956, Acts of the Oireachtas 1956, p. 439, most recently amended by the Irish Nationality and Citizenship Act 1994 Legge sulla cittadinanza italiana, Act Nr. 91 of 5 February 1992, Gazetta Ufficiale 15 February 1992, Nr. 38 Loi sur la nationalite luxembourgeoise, Act of 22 February 1968, Mem. 1968, 91; Texte coordinee 11 December 1986, Mem. 1986, 2354 Ley de nacionalidad, Act of 23 January 1998; see also Constitucion politica art. 32-37 291
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Moldova Netherlands
Norway
Poland
Portugal Spain
Sweden
Switzerland
Turkey
United Kingdom United States
292
Legea Ce_ateniei Republicii Moldova, Act of 2 June 2000, Monitorul Oficial Nr. 98-101 709 of 10 August 2000 Rijkswet op het Nederlanderschap, Act of 18 December 1984, Staatsblad 1984, 627. This Act is most recently amended by Act of 21 December 2000, Staatslad 2000, 618 which will come in force in the end of the year 2000 or the beginning of 2003; see also Bill 28 309 (R 1702) pending in parliament, which proposes to amend again both the Act of 1984 and the Act of 2000. Lov om Norsk Riksborgarrett, Act of 8 December 1950, Lov Tidende Nr. 49 of 19 December 1950, most recently amended by Act of 11 June 1999, Nr, 38, in ofrce since 1 December 1999 Ustawa o obywatelstwie polskim, Act of 15 February 1962, Dziennik Ustaw Rzeczypospolitej Polskiej 1962, Nr. 10 of 21 February 1962, pos. 49 Lei da Nacionalidade portugues, Act 37/81 of 3 October 1981, Diario da Republica, 1st serie, Nr. 228, p. 2648, most recently amended by Legislative Decree Nr 37 of 31 January 1997 Art. 17-26 Codigo civil, as amended by Act 18/1990 of 17 December 1990, Boletin Oficial del Estado, Nr. 3 of 18 December 1990, most recently amended by Act 29/95 of 2 November 1995 Lag om Svenskt Medborgarskap, Act Nr. 382 of 22 June 1950, Svensks Forfattningssamling of 30 June 1950, p. 717, amended by Act 29/1995 of 2 November 1995, most recently amended by Act of 26 November 1998. See also the new Lag om svenskt medborgarskap, Act. Nr. 82 of 1 March 2001, in forece on 1 July 2001 Bundesgesetz u Erwerb und Verlust des Schweizerburgerrechts, Bundesblatt 1952 III, 137, most recently amended by Act of 24 March 2000, in force since 1 September 2000 Act Nr. 403 of 11 February 1964, Resmi Gazete Nr. 11638 of 22 February 1964, most recently amended by Act Nr. 4112 of 7 June 1995, Resmi Gazete Nr. 22311 of 12 June 1995 British Nationality Act 1981 Immigration and Nationality Act, Act of 27 June 1952, Pub. L 82-414, 66 Stat. 163, as amended, codified in 8 U.S.C. sec. 1101 ff.
Loss of Nationality: A Critical Inventory
ANNEX II Treaties and Recommendations in the Field of Nationality Law Treaties (Only those contracting states whose nationality statutes are included in this project are mentioned. Moreover only those reservations are indicated which have relevance for the grounds of loss of nationality. States that entered reservations are indicated with an asterisk.) 1. CONVENTION ON CERTAIN QUESTIONS RELATING TO THE CONFLICT OF NATIONALITY LAWS of The Hague 12-4-1930 (UNTS vol. 179, 89) Contracting Parties i.a.: Belgium,* (Canada; denunciation on 15 May 1996), Netherlands,* Norway, Poland, Sweden,* United Kingdom Belgium made following declaration: "Conformement aux dispositions de 1'article 20 de la convention, la ratification de la Belgique est donnee a l'exclusion de '1'article 16 de celle-ci". Nevertheless this declaration no longer has relevance for contemporary Belgian nationality law. The Netherlands made the following reservation: "Les Pays-Bas: Excluent de leur acceptation les articles 8, 9 et 10;..." Nevertheless this reservation no longer has relevance for contemporary Netherlands nationality law. Sweden excluded the application of the second sentence of art. 11, in case where the wife referred to in the article, after recovering the nationality of her country of origin, fails to establish her ordinary residence in that country. 2. PROTOCOL RELATING TO A CERTAIN CASE OF STATELESSNESS. The Hague 1930 (UNTS vol. 179, 115) Contracting Parties i.a.: Netherlands, Poland, United Kingdom 3. PROTOCOL RELATING TO MILITARY OBLIGATIONS IN CERTAIN CASES OF DOUBLE NATIONALITY. The Hague 1930 (UNTS vol. 178, 227) Contracting Parties i.a.: Austria, Belgium, Netherlands, Sweden, United Kingdom, United States 4. CONVENTION RELATING TO THE STATUS OF REFUGEES (art. 34; Naturalization), Geneva 28 July 1951 (UNTS vol. 189, 137) Contracting Parties i.a.: Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom 293
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5. CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS (art. 32; Naturalization), New York 28 September 1954 (UNTS vol. 360, 117) Contracting Parties i.a.:Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Norway, Spain, Sweden, Switzerland, United Kingdom 6. CONVENTION ON THE NATIONALITY OF MARRIED WOMEN, New York 20 February 1957 (UNTS vol. 309, 65) Contracting Parties i.a.: Austria, Canada, Denmark, Finland, Germany, Iceland, Ireland, Luxembourg, Mexico, (until 16 January 1973 Netherlands), Norway, Poland, Sweden, (until 24 December 1982, United Kingdom) 7. OPTIONAL PROTOCOL CONCERNING ACQUISITION OF NATIONALITY, belonging to the Convention on Diplomatic Relations Vienna 18 April 1961 (UNTS vol. 500, 223) Contracting Parties i.a.: Belgium, Denmark, Finland, Germany, Iceland, Italy, Netherlands, Norway, Sweden, Switzerland 8. CONVENTION ON THE REDUCTION OF STATELESSNESS, New York 30 August 1961 (UNTS 989, 175) Contracting Parties i.a.: Austria,* Canada, Denmark, Germany,* Ireland,* Netherlands, Norway, Sweden, United Kingdom* Austria made following declarations regarding art. 8(3)(a)(i) and (ii): "Austria declares to retain the right to deprive a person of his nationality, if such person enters, on his own free will, the military service of a foreign state: "Austria declares to retain the right to deprive a person of his nationality, if such person being in the service of O foreign State, conducts himself in a manner seriously prejudicial to the interest or to the prestige of the Republic of Austria." Germany made following declaration: "The Federal Republic of Germany will apply the said Convention: in respect of eliminating of statelessness, to persons who are stateless under the term of article 1, paragraph 1, of the Convention relating to the Status of Stateless Persons of 28 September 1954; in respect of prevention of statelessness and retention of nationality, to German nationals within the meaning of the Basic Law (Constitution) for the Federal Republic of Germany." Ireland declared: "In accordance with paragraph 3 of article 8 of the Convention Ireland retains the right to deprive a naturalised Irish citizen of his citizenship pursuant to section 19(1 )(b) of the Irish Nationality and Citizenship Act, 1956, on grounds specified in the aforesaid paragraph." 294
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The United Kingdom declared in accordance with art. 8(3): "... that, notwithstanding the provisions of paragraph 1 of article 8, the United Kingdom retains the right to deprive a naturalised person of his nationality on the following grounds, being grounds existing in United Kingdom law at the present time: that, inconsistently with his duty of loyalty to Her Britannic Majesty, the person has, in disregard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from another State, or has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty." 9. OPTIONAL PROTOCOL CONCERNING ACQUISITION OF NATIONALITY, belonging to the Convention of Consular Relations, Vienna 24 April 1963 (UNTS vol. 596,469); in force for Contracting Parties i.a.: Belgium, Denmark, Finland, Germany, Iceland, Italy, Netherlands, Norway, Sweden, Switzerland 10. CONVENTION ON REDUCTION OF CASES OF MULTIPLE NATIONALITY AND MILITARY OBLIGATIONS IN CASES OF MULTIPLE NATIONALITY, Strasbourg 6 May 1963 (UNTS vol. 634, 221) Contracting States: Austria,* Belgium, Denmark, France, Germany,* Ireland,* Italy,* Luxembourg, Netherlands, Norway, Spain,* Sweden (until 2002), United Kingdom* Austria made following declarations: "1. La Republique d'Autriche fait usage de la reserve prevue au point de 1'Annexe a la Convention;" "2. A 1'occasion du depot de 1'instrument de ratification de la presente Convention effectue aujourd'hui, la Republique d'Autriche declare que les expressions, obligations militaires/military obligations' employees aux articles 5 et 6 seront interpretees, de facon que 1'on n'entend par la que 1'obligation de 1'individu d'accomplir son service militaire. D'autres obligations militaires se sont en rien affectees par la presente Convention." Germany made a reservation and a declaration: "1. La Republique Federale d 'Allemagne fait usage des reserves prevues aux Nos. 1 et 3 de 1'Annexe a la Convention; 2. La Convention du 6 Mai 1963 sur la reduction des cas de pluralite de nationalites et sur les obligation militaires en cas de pluralite de nationalites s'appliquera egalement au Land Berlin avec effet de la date a laquelle elle entrera en vigueur pour la Republique Federale d'Allemagne. Vu le fait qu'aucune obligation militaire n'existe a Berlin, les dispositions du Chapitre II de la Convention n'y sont pas applicables." The reservation mentioned in Nr. 1 of the Annex was taken back by Germany from 1 January 1975. The reservation mentioned in Nr. 3 does still apply. 295
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Ireland ratified only the second chapter of the treaty and is not bound by the nationality provisions. Italy made the following reservations: "Le Gouvernement italien fait usage des reserves 1, 2 et 4 figurant a 1' Annexe a la Convention et, en consequence, e, reserve: de subordonner la perte de sa nationalite prevue aux paragraphes 1, 2 et 3 de 1'article ler a la condition que la personne interessee reside habituellement ou fixe sa residence habituelle a quelque moment que se soit en dehors de son territoire, a moins que, s'agissant d'une acquisition par manifestation expresse de volonte, la meme personne soit dispensee par 1'autorite competente de la condition de resider habituellement a 1'etranger; de ne pas considerer comme une option au sens de Farticle ler, la declaration souscrite par la femme en vue d'acquerir la nationalite du mari au moment et par effet du mariage; de ne pas appliquer les dispositions des articles ler et 2 de la presente Convention lorsque 1'epouse de 1'un de ses ressortissants a acquis une nouvelle nationalite, aussi longtemps que son mari conserve la nationalite de cette Partie. Spain ratified only the second chapter of the treaty and is not bound by the nationality provisions. The United Kingdom ratified only the Second chapter of the Treaty and is not bound by the nationality provisions. 11. PROTOCOL AMENDING THE CONVENTION ON REDUCTION OF CASES OF MULTIPLE NATIONALITY AND MILITARY OBLIGATIONS IN CASES OF MULTIPLE NATIONALITY (Strasbourg 6 May 1963), Strasbourg 24 November 1977 (ETS 95) Contracting States: Belgium, Denmark, Luxembourg, Netherlands, Norway, Spain, Sweden (until 2002), United Kingdom 12. ADDITIONAL PROTOCOL TO THE CONVENTION ON REDUCTION OF CASES OF MULTIPLE NATIONALITY AND MILITARY OBLIGATIONS IN CASES OF MULTIPLE NATIONALITY (Strasbourg 6 May 1963), Strasbourg 24 November 1977 (ETS 96) Contracting States: Belgium, Luxembourg, Netherlands, Norway 13. SECOND PROTOCOL AMENDING THE CONVENTION ON THE REDUCTION OF CASES OF MULTIPLE NATIONALITY AND MILITARY OBLIGATIONS IN CASES OF MULTIPLE NATIONALITY, Strasbourg 1993 Contracting States: France, Italy, Netherlands 14. CONVENTION ON THE EXCHANGE OF INFORMATION REGARDING 296
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ACQUISITION OF NATIONALITY (CONVENTION CONCERNANT L'ECHANGE D'INFORMATION EN MATIERE D'ACQUISITION DE NATIONALITE), Paris 10 September 1964 (UNTS 932, 81) Contracting States: Austria, Belgium, Greece, Italy, Luxembourg, Netherlands, Portugal, Turkey 15. INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, New York 7 March 1966 (art. 5(d)(iii)) (UNTS 660, 195) Contracting States i.a.: Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Mexico, Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom, United States of America 16. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, New York 19 December 1966 (art. 24) (UNTS 999, 172) Contracting States i.a.: Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Mexico, Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom, United States of America 17. EUROPEAN CONVENTION ON THE ADOPTION OF CHILDREN (art. 11), Strasbourg 24 April 1967 (UNTS 634, 255; ETS 58) Contracting States i.a.: Austria, Denmark, Germany, Greece, Ireland, Italy, Norway, Poland, Portugal, Sweden, Switzerland, United Kingdom 18. CONVENTION ON THE REDUCTION OF CASES OF STATELESSNESS (CONVENTION TENDANT A REDUIRE LE NOMBRE DES CAS D'APATRIDIE), Berne 13 September 1973 Contracting States: Germany, Greece, Luxembourg, Netherlands (denunciation in 2001), Switzerland, Turkey 19. INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION OF WOMEN, New York 18 December 1979 (art. 9) (UNTS 660, 195) Contracting States i.a.: Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Mexico, Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey,* United Kingdom* Turkey declared: "Article 9, paragraph 1 of the Convention is not in conflict 297
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with the provisions of article 5, paragraph 1, and article 15 and 17 of the Turkish Law on Nationality, relating to the acquisition of citizenship, since the intent of those provisions regulating acquisition of citizenship through marriage is to prevent statelessness." The United Kingdom declared: "The British nationality Act 1981, which was brought into force with effect from January 1983, is based on principles which do not allow of any discrimination against women within the meaning of Article 1 as regards acquisition, change or retention of their nationality or as regards the nationality of their children. The United Kingdom's acceptance of Article 9 shall not, however, be taken to invalidate the continuation of certain temporary or transitional provisions which will continue in force beyond that date." 20. CONVENTION ON THE RIGHTS OF THE CHILD, New York 20 November 1989 (art. 7 and 8) (UNTS 1577, 3) Contracting States i.a.: Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Mexico, Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom 21. EUROPEAN CONVENTION ON NATIONALITY, Strasbourg 6 November 1997 (ETS 166) Contracting States i.a.: Austria,* Moldova, Netherlands*, Portugal, Sweeden The relevant reservations/declarations made by Austria and the Nethelands are described in the test of this chapter. 22. CIEC CONVENTION CONCERNING THE DELIVERY CERTIFICATE OF NATIONALITY, Lisbon 14 September 1999
OF
A
not yet in force Declarations, Resolutions, and Recommendations of International Organizations 23. UNIVERSAL DECLARATION OF HUMAN RIGHTS (art. 15) (Adopted and proclaimed by General Assembly of the United Nations, resolution 217A (III) of 10 December 1948) 24. RECOMMENDATION 194 (1959) ON THE NATIONALITY CHILDREN OF STATELESS PERSONS (Council of Europe)
OF
25. RECOMMENDATION 519 (1968) ON THE NATIONALITY OF MARRIED WOMEN (Council of Europe) 26. RECOMMENDATION 564 (1969) ON THE ACQUISITION BY REFUGEES 298
Loss of Nationality: A Critical Inventory
OF THE NATIONALITY OF THEIR COUNTRY OF RESIDENCE (Council of Europe) 27. RESOLUTION (70)2 ACQUISITION BY REFUGEES OF THE NATIONALITY OF THEIR COUNTRY OF RESIDENCE (Council of Europe) 28. RECOMMENDATION 696 (1973) ON CERTAIN ASPECTS OF THE ACQUISITION OF NATIONALITY (Council of Europe) 29. RESOLUTION (77)12 ON THE NATIONALITY OF SPOUSES OF DIFFERENT NATIONALITIES (Council of Europe) 30. RESOLUTION (77)13 ON THE NATIONALITY OF CHILDREN BORN IN WEDLOCK (Council of Europe) 31. RECOMMENDATION 841 (1978) MIGRANTS (Council of Europe)
ON
SECOND
GENERATION
32. RECOMMENDATION No. R (83)1 ON STATELESS NOMADS AND NOMADS OF UNDETERMINED NATIONALITY (Council of Europe) 33. RECOMMENDATION No. R (84)9 ON MIGRANTS (Council of Europe)
SECOND
GENERATION
34. RECOMMENDATION 984 (1984) ON THE ACQUISITION BY REFUGEES OF THE NATIONALITY OF THE RECEIVING COUNTRY (Council of Europe) 35. RECOMMENDATION No. R (84)21 ON THE ACQUISITION BY REFUGEES OF THE NATIONALITY OF THE HOST COUNTRY (Council of Europe) 36. RECOMMENDATION No. R (99)18 ON THE AVOIDANCE AND THE REDUCTION OF STATELESSNESS (Council of Europe)
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III.
National Practice
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CHAPTER 10
UNDER TWO FLAGS: DUAL NATIONALITY IN LATIN AMERICA AND ITS CONSEQUENCES FOR NATURALIZATION IN THE UNITED STATES
Michael Jones-Correa*
Dual nationality is a complex phenomenon, reflecting competing interests of receiving states, sending states and immigrants. As the recognition of dual nationality has spread among sending states, however, receiving states like the United States have begun to have second thoughts about its effect on naturalization and citizenship in their countries. This paper seeks to explore the issue further. Is the practice of dual nationality really detrimental to receiving states? Specifically, does recognition of dual nationality by sending states negatively affect the naturalization of immigrants from those sending countries in the United States? This paper addresses these questions by surveying the practice of dual nationality in the Western Hemisphere, particularly as it affects the naturalization rates of immigrants in the United States. In the first section, this paper begins by looking at the extent and spread of dual nationality provisions, and the pathways for implementation of the status. In the next section, it turns to a discussion of the multiple (and at times conflicting) interests - of immigrants, sending states, and receiving states - in dual nationality. While immigrants and sending countries are in general agreement on the positive benefits of dual nationality, commentators in receiving countries like the United States continue to express deep unease at the spread of dual nationality and its consequences for American citizenship. The question is whether these concerns are in fact justified. The sections that follow lay out the methods and data for answering this question, and the findings of the study. Briefly, the paper finds that immigrants from countries recognizing dual nationality average *
A revised version of this chapter appeared in the International Migration Review, Winter 2001. Center for Migration Studies of New York, Inc. <www.cmsny.org>.
David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 303-333 © 2003 Kluwer Law International. Printed in Great Britain.
M. Jones-Correa
higher naturalization rates in the United States than countries that do not. The conclusion outlines the implications these findings have for the debate around dual nationality.
I. DUAL NATIONALITY AND ITS RECOGNITION IN THE WESTERN HEMISPHERE "Nationality" and "citizenship" are often used interchangeably, but have somewhat different meanings. Nationality refers to the formal legal status of state membership. Citizenship, on the other hand, delineates "the specific character of a member's rights and duties within the national polity" (Feldblum and Klusmeyer 1999). Dual nationality allows individuals to hold memberships in two (or more) states (see Spiro 1998). However, as illustrated below, dual nationality does not necessarily entail access to all the rights and benefits of national citizenship, like voting or the right to hold office. Dual nationality has become much more visible recently, and being visible, has become increasingly controversial as well. The reason for this has much to do with recent debates in both sending countries (Mexico, India, South Korea, and the Philippines, to name a few) and receiving countries (Germany and the United States, for instance) about whether to recognize or permit dual nationality for their citizens. In the United States the discussion has re-surfaced in response to the recognition of dual nationality by countries, many of them in Latin America, whose emigrants have settled in the United States. At the time of this writing, ten Latin American countries - Brazil, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Mexico, Panama, Peru, and Uruguay - recognize dual nationality.1 An additional number recognize a limited form of dual nationality shared only with treaty signatories - Guatemala, for instance, with other nations in Central America, and a number of countries with Spain.2 At least ten Caribbean basin nations - among them Antigua, Barbados, Belize, Dominica, Grenada, Jamaica, St. Kitts, St. Lucia, St. Vincent and the Grenadines, and Trinidad and Tobago - also recognize dual nationality, most of them since their independence (see Table 1). Although most of the attention here will be focused on dual nationality in Latin America - the Spanish - and Portuguese-speaking countries in the Western Hemisphere - the paper returns to the Caribbean cases intermittently below. In Latin America there has been an acceleration of interest in dual nationality. Before 1991 only four Latin American countries - Uruguay (1919), Panama (1972), Peru (1980), and El Salvador (1983) - had opted to recognize dual nationality. Since then, between 1991 and 1998 an additional six countries have recognized dual 1 2
304
"Latin America" in this context refers to Spanish- and Portuguese-speaking countries, as opposed to the former English, French and Dutch colonies of the Caribbean basin. Spain has negotiated bilateral dual nationality treaties with Argentina, Bolivia, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Guatemala, Honduras, Nicaragua, Paraguay and Peru.
Dual Nationality in Latin America Table 1 Recognition of Dual Nationality among Selected Countries in the Western Hemisphere Spanish- and Portuguese-Speaking Countries Country
Dual Nationality
Year
Argentina Bolivia Brazil Chile Colombia Costa Rica Cuba Dominican Republic Ecuador El Salvador Guatemala Honduras
no no yes no yes yes no yes yes yes no no
— 1996 — 1991 1995 — 1994 1995 1983 — —
Mexico Nicaragua Panama Paraguay Peru Uruguay Venezuela
yes no yes no yes yes no
1998 — 1972 — 1980 1919 —
Comments only with treaty nations recoverable if return only with treaty nations
only with treaty nations only with treaty nations, recoverable if return only with treaty nations only with treaty nations
recoverable if return
Other Western Hemisphere Countries Country
Dual Nationality
Year
Comments
Antigua Bahamas Barbados Belize Dominica Grenada Guyana Haiti Jamaica St. Kitts St. Lucia St. Vincent Suriname Trinidad and Tobago
yes no yes yes yes yes no no yes yes yes yes no yes
1981 — 1966 1981 1978 1973 — — 1962 1983 1979 1979 — 1988
since independence since independence since independence since independence since independence
since since since since
independence independence independence independence
Sources: Organization internacional para las migraciones (OIM), Centro de information sobre migraciones en America Latina (CIMAL), copies of national consitutions available at: http://www.reuna.cl/oim/constit/CONSTIT.html#al (February 2, 2000); phone interviews with embassies and consulates, January 17-February 2, 2000.
305
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nationality. One analytical difference, then, among countries which have recognized dual nationality is between "early adopters" and "late adopters." A second difference among countries acknowledging dual nationality is between those which have followed "top-down" policy decision-making paths, instigated by country of origin governments with little or no input by their emigrant communities abroad, and those responding to pressure from their overseas compatriots, referred to here as the "bottom-up" approach (see Table 2). Table 2 Types of Dual Nationality Among Spanishand Portuguese-speaking Countries in the Western Hemisphere Top-Down Early
Uruguay (1919) Panama (1972) Peru (1980) El Salvador (1983)
Late
Costa Rica (1995) Brazil (1996)
Bottom-Up
Colombia (1991) Dominican Republic (1994) Ecuador (1995) Mexico (1998)
Sources: see Table 1.
Decisions by early adopters to recognize dual nationality were by-and-large topdown state-driven policy decisions; late adopters, however, have split between topdown and bottom-up approaches. In Uruguay, Panama, and Peru formal recognition of dual nationality is not a recent phenomenon. These countries have sanctioned membership claims of their dual nationals in other countries for decades. Uruguay has followed the model of ius sanguinis: nationality is acquired at birth, and cannot be abrogated by other subsequent changes in allegiance or status. Nationals abroad retain rights, even if they naturalize in another country, and can retain the use of both passports. If they wish, they can participate in the elections of the home country upon their return (or in the case of Peru, participate in national elections through their country's consulates abroad). The acceptance of dual nationality allows immigrants to take on other political allegiances without jeopardizing their standing with their countries of origin. It may not allow them full and equal political rights while residing abroad, but it usually allows immigrants to recover those rights if and when they return to the home country. Brazil and Costa Rica are more recent examples of this top-down approach, orchestrated from within the legislature as a kind of afterthought, with little concerted pressure from the immigrant community abroad.3 In seven months of attempting constitutional reform in 1996, Brazil's Congress was largely ineffectual, passing only 3
306
See Marc Margolis "South America: Constitutional Reform Flickers Out in Brazil," Los Angeles Times, April 23, 1994, p. A2.
Dual Nationality in Latin America
four minor changes. One of these was allowing Brazilians with foreign passports the right to dual citizenship. Likewise, Costa Rica passed its dual nationality amendment in response not to pressure from abroad but in response to public dismay that Arturo Chan, the first Costa Rican astronaut, was going into space as an American citizen, not as a Costa Rican. The Chan case propelled the Costa Rican Congress to pass a dual nationality amendment in 1995.4 El Salvador passed its dual nationality law in 1983, as the country was in the early stages of a ten-year civil war. By its end, a tenth of the Salvadoran population were refugees abroad, but the migrant flow followed, rather than triggered, the recognition of dual nationality in El Salvador. In the Colombian, Ecuadorian, and Dominican cases the impetus for dual nationality came from the bottom up, reflecting lobbying efforts from among elements of these countries' immigrant populations in the United States (particularly from New York City), and not from within these nations themselves. Immigrants repatriate hundreds of millions of dollars a year to their kin in Latin America, having a significant impact on local economies (Gurak and Kritz 1984; Portes and Grosfoguel 1994). Settlements of immigrants from all three countries have become important campaign stops for home-country politicians seeking to raise funds for political races in these countries. Immigrants have been able to translate this economic muscle into political leverage, winning concessions from political parties and legislatures in their countries of origin that regularize their status as citizens, and allow dual nationality, ownership of land, and easy access when returning, among other things. In addition, the successes of some nationalities have inspired other immigrant groups in New York City to petition and lobby for similar benefits. Colombian organizations in New York began lobbying in Colombia for dual nationality after meeting with a group of visiting Colombian senators in 1987. The timing was propitious. About a year later, with the process of constitutional reform underway in Colombia, they received notice that some legislators would work to see that changes would be introduced favoring Colombian nationals abroad. A group of Colombians in New York immediately set up a committee - the Comite Colombiano Pro-Reforma Institutional: Doble Nacionalidad y Circunscripcion Electoral en el Exterior - which, among other things, collected 5,000 signatures at the Colombian Festival held in Flushing Meadow park that year in support of a petition in favor of dual nationality. 5 The amended constitution was approved in Colombia on July 4,1991, incorporating guarantees for Colombians overseas.6 Included were provisions 4 5 6
Conversation with the Costa Rican Embassy to the United States, February 1, 2000. Conversation with the president of Colombian Charities in Queens, New York City; May 13, 1992. It is curious to note how minuscule a role dual citizenship played in the debates on constitutional reform in the Asamblea Constitutional. Understandably, in Colombia itself, people were much more interested in, for example, whether divorce would be allowed for Catholics, departmental governors elected directly, or abortion legalized. "Poll by El Tiempo, Radio Caracol, and CNC: Opinions Divided on Recall Elections" El Tiempo, Bogota, Colombia, May 27, 1991, p. Al, in FBIS Latin American Report, July 8, 1991, p. 54-58. Note that some observers believe that the Colombian dual nationality provision was a response more to the much larger Colombian population in Venezuela than to the vocal minority in the United States. See for example de la Garza et al. 1998. 307
M. Jones-Correa
that allowed Colombians overseas to become citizens of another country without losing their rights as Colombians, to elect a senator to represent them from abroad, and to vote directly in Colombia's presidential elections.7 The Colombian success was influential; it demonstrated to other Latin American immigrant groups in New York City that lobbying the home country for dual nationality provisions could in fact be effective. The success of the Ecuadorian effort for dual nationality, for example, owes much to the Colombian achievement. Although Ecuadorian immigrant lobbying for dual nationality began as far back as 1967, when a group of Ecuadorian immigrants in New York petitioned for the right of citizens abroad to vote in Ecuador's elections, the effort was more sporadic, and faded with the indifference of the Ecuadorian government (a military regime at the time). In 1979, a group of Ecuadorian expatriates in Queens put together an organization to lobby for dual nationality (Ecuatorianos por la Consecution y Conservation de la Doble Nationalidad), and submitted a formal proposal for dual nationality for Ecuadorians abroad. Again, there was no response from the Ecuadorian government.8 In 1983, an Ecuadorian congressional committee proposed that citizens abroad should participate in Ecuadorian national elections from overseas consulates (following the Colombian model). The proposal, however, was shelved. The pace picked up after 1990, while concomitant proposals were being discussed in Colombia. Letters were sent from the immigrant community in New York and elsewhere to the legislature in Quito, the proposal was endorsed by the VI Congress of the Federation of Ecuadorian Organizations in 1991, and a delegation representing Ecuadorians in New York was sent to Ecuador to argue their case in March, 1992.9 Ecuadorians seemed close to succeeding that year, when an Extraordinary Congress was convoked to amend the Ecuadorian constitution. The Congress, however, stalemated and was dissolved, throwing the future of the project into doubt.10 After some fits and starts, the Ecuadorian legislature finally approved dual nationality in May 1995. The debate over dual nationality for Dominicans abroad also accelerated after 1990. A constitutional amendment for dual nationality had been debated in the Dominican Republic for at least ten years (Georges 1984: 36). Both of the major political parties in the Dominican Republic supported some kind of dual nationality 7
8 9 10
308
See flyer, FEDOCOL, Segundo Foro Civico, June 9, 1991; also "A Partir de Hoy Entra en Vigencia Nueva Constitution de Colombia," Noticias del Mundo July 5, 1991. "La Colombia de Jackson Heights," El Diario/La Prensa, July 18, 1991. Note that the election of a Senator to represent Colombians abroad was not implemented until after 1997. Carlos Garcia, "Piden al Congreso y Gobierno Ley Doble Nacionalidad," Noticias del Mundo, September 18, 1991. Eudoro Hinojosa, "La Doble Nacionalidad Ecuatoriana: Cronolgia y Progreso," Noticias del Mundo, July 1, 1992. Carlos Garcia, "Irrenunciabilidad Nacionalidad Ecuatoriana es Grata Realidad," Noticias del Mundo, January 14, 1994; "Virtual Paralisis Politica en el Ecuador," February 23, 1994; "En Grave Peligro Aprobacion de Irrenunciabilidad de la Ciudadania Ecuatoriana," Noticias del Mundo, March 2, 1994.
Dual Nationality in Latin America
provision in theory, but legislation was never approved. The promise of dual nationality seemed to function as a convenient symbolic gesture made to placate the large immigrant community in the United States. In 1992, for instance, then-President Balaguer released a statement indicating he favored the idea, but there was no effort to actually see the idea through into law.11 The Dominican legislature passed legislation in 1994 establishing the principle of dual nationality for Dominicans abroad, but it was the presidential elections of 1996 that really demonstrated the shift in the official attitude toward Dominicans living abroad. In the 1996 presidential elections in the Dominican Republic both candidates who made it to the final round said they favored legislation legalizing dual nationality and permitting Dominicans living abroad to vote wherever they live - perhaps at the closest consulate - rather than having to come to vote in the Dominican Republic. (Some observers noted this change would have had the effect of making the New York metropolitan area the second-largest concentration of potential voters in Dominican presidential elections, exceeded only by Santo Domingo, the capital.) In his campaign the newly elected president, Lionel Fernandez Reyna, said he planned to establish a Ministry of the Diaspora. Mr. Pena-Gomez, the defeated candidate, had promised to allow the election of congressional deputies to represent Dominicans living abroad.12 With the affirmation of the right to dual nationality for Dominican citizens abroad, three countries contributing some of the largest immigrant flows from Latin America to the United States have all successfully lobbied for their permanent inclusion as members of their home countries' polities. Their success raises at least one question: Why should their home countries have paid them any attention? The likely answer is that immigrants have leverage with their countries of origin that they don't always have in the countries in which they reside. As noted above, migrants provide remittances to their families, which are major sources of small investment funds and foreign currency exchange for many countries in Latin America and the Caribbean (Basch et al. 1994: 259).13 Political candidates routinely come to the United States to raise money for their campaigns in the home countries and to build ties with the immigrant community abroad. As a consequence, immigrants have leverage with these politicians, in both opposition and governing parties, in a way they do not (yet) with candidates and elected officials in American politics. For example, for years Dominicans residing in New York have been an important source of contributions for political campaigns in the Dominican Republic. An 11
12
13
"Balaguer Favorece Doble Nacionalidad Dominicanos," Noticias del Mundo, May 29, 1992; Reginaldo Atanay,"Para Los Dominicanos: Es Bueno Ser Ciudadanos de EEUU?," El Diario/La Prensa, March 12, 1992). Larry Rohter, "New York's Dominicans Taking Big Role in Island Elections," New York Times, June 29, 1996, pp. Al, A24. This is true of other countries as well. Basch et al. note, for instance, that Filipinos abroad also requested the right to vote in Philippine elections, the right to own land in the Philippines while a foreign citizen without special regulation, dual citizenship, and the right to run for office while a dual citizen (Basch et al. 1994: 259). However, the Filipino campaign has thus far been unsuccessful. 309
M. Jones-Correa
official of the Partido Revolucionario Dominicano estimated that in 1996, 75 percent of its cash contributions came from emigrants (de la Garza et al. 1998: 29). Another source calculated that overall, 15 percent of the campaign funds for Dominican general elections is raised among immigrants abroad (Graham 1997: 101 ).14 Dominican politicians routinely make trips to the city to hold fund-raisers for their political campaigns back home, emphasizing the ties between the two communities. While running for president in 1996, for instance, Leonel Fernandez played up and capitalized on his New York upbringing: "I am a product of New York City," he proclaimed.15 The importance of these campaign funds has only increased as the Dominican community in New York has gotten larger, more established, and more prosperous. Incomes that, in absolute terms, are several times the norm for their compatriots in their country of origin make Dominicans resident in New York significant potential campaign donors. Dominicans in New York raise amounts in the hundreds of thousands of dollars for Dominican politicians in Dominican election cycles, much of it raised at $150-a-head dinners in Washington Heights, Corona, or the Bronx.16 Pena-Gomez, one of the two front-runners in the 1996 presidential race, said the role of Dominicans in New York was "absolutely decisive." For politicians in the home country, as a major source of political donations, the Dominican community in the United States is worth placating. Dominicans abroad have translated their contributions into political leverage on Dominican legislators. Like other Latin American immigrant communities in the United States, they have asked for, and received, pledges of changes that would regularize their membership status in their country of origin. These changes recognizing the permanence of Dominican nationality, however, are relatively easy for Dominican politicians to pass - they are largely symbolic and hence relatively costless. Allowing Dominicans to vote in Dominican national elections from abroad and giving Dominicans in New York representation in the national assembly are much more controversial and costly, and hence less likely to be implemented.17 The Mexican case, like the Dominican, is characterized not only by the growing presence and economic potential of their immigrants abroad, but also by the central role played by party politics. By the time of the 1988 presidential elections in Mexico, California and Texas were well-established campaign stops for Mexican politicians in the opposition, and increasingly, for the governing party of the Partido Revolucionario Institutional (PRI) as well. Governors of Mexican states met regularly with residents abroad for consultations, support, and contributions.18 For the first 14 15 16 17 18
310
See also Juan Forero, "Dominicans Stay Tuned to Voting at Home," New York Times. May 17, 2000. Larry Rohter, "New York's Dominicans Taking Big Role in Island Elections," New York Times, June 29, 1996. Ibid. Currently, to vote in a national election, Dominicans abroad must return to vote in their home country. During 1990 and 1991, the governors of the states of Zacatecas, Chihuahua, Jalisco, Nayarit, Sinaloa, and Baja California visited Los Angeles (most of them more than once) to meet with their respective colonias. Communities of people from Oaxaca, Durango, Michoacan, and Colima are also working to establish relationships with the governments of their home states (Gonzalez Guttierez 1993: 229).
Dual Nationality in Latin America
time in the 1988 campaign Mexican opposition parties were directly appealing to the emigrant vote by promising dual nationality and the ability to vote from Mexican consulates in the United States. The Frente Democrdtico National (the forerunner of the current opposition party, the Partido Revolucionario Democrdtico or PRD) launched a petition drive to collect signatures from Mexican nationals in California supporting the voting rights of Mexicans in the United States.19 The 1988 elections were a warning signal to the ruling PRI party that the Mexican expatriate electorate was up for grabs. It was only in the midst of the broader opening in Mexican politics in the summer of 1996 that the PRI, along with the opposition parties, agreed in principle to a series of political reforms. Among them was a commitment for a constitutional amendment which would give Mexican nationals residing abroad dual nationality, and perhaps even the right to cast absentee ballots for President in the year 2000 (like Peruvians and Colombians in the United States).20 In 1996, the Mexican Congress began serious consideration of a constitutional amendment that would allow Mexicans abroad to retain a non-voting Mexican cultural "nationality" while taking foreign citizenship, as well as exemption from certain restrictions on property rights.21 A dual nationality provision was approved by the Mexican Congress in December of 1996, finally taking effect in March 1998 after ratification by two-thirds of Mexico's states.22 Bottom-up immigrant lobbying of their home countries works best when the goal of the lobbying offers both a clear benefit and little cost to the government of their country of origin. Having some form of economic leverage - whether in terms of campaign contributions, remittances, or possible future re-investment in the home country - strengthens immigrants' bargaining position. Finally, acquiring allies among opposition or governing parties (ready to harvest the support of emigrants for their own ends) can be key to getting proposals passed through the legislative maze in the home country. The bid for dual nationality by Latin American immigrants in the United States fit all of these conditions. Differences between late and early adopters of dual nationality, and between countries coming to these policies via top-down or bottom-up decision-making 19
20
21 22
Dresser 1993: 100. See also "A Mexican Right to Vote From Abroad: A Key Strategy for Expanding Mexican Democracy," proposal presented to the Statewide Meeting of the PRD, Riverside CA, July 1, 1991. Sam Dillon, "Major Party Deal in Mexico To Bring Political Reforms," New York Times, July 27, 1996, pp. A1-A2. Sam Dillon, "Mexico is Near To Granting Expatriates Voting Rights," New York Times, June 16, 1996, p. A4. Voting by citizens of other countries living in the U.S. is not so unusual as it might seem; 20,000 Poles, for instance, cast ballots at Polish consulates in four cities in the United States. Dillon, June 16, 1996. It worth remembering as well that more than two million Americans living or working abroad cast ballots from overseas in the 1992 Presidential elections then taking place in the United States. Seth Mydans, "The Latest Big Boom is Citizenship," New York Times, August 11, 1995, p. A12. Ismael Romero, "Aprobo el pleno del Senado las reformas para la doble nacionalidad," La Jornada, December 6, 1996; Oscar Camacho, "Aprueban diputados las reformas para el ortogamiento de la doble nacionalidad," La Jornada, December 11, 1996. 311
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pathways are not irrelevant. As explained in more detail below, these differences may have significant effects on the naturalization rates of immigrants in the United States.
II. COMPETING INTERESTS IN DUAL NATIONALITY Sending countries, receiving countries, and immigrants all have their own, sometimes competing, interests on the dual nationality issue (see Table 3). Not only that, but Table 3 Dual Nationality - Competing Interests of States and Immigrants Cons
Pros Immigrants
Acquire rights as nationals of two or - Take on obligations as nationals of more countries two or more countries - Receive acknowledgment of multiple memberships and loyalties
Sending States
- Promote economic development - Encourage remittances - Develop a sympathetic lobby in receiving country
- Permit undue influence of emigrants in domestic politics; emigrants as political loose cannon
Receiving States
- Support foreign policy goals - Encourage the naturalization of immigrants - Recognize realities of transnational allegiances
- Divide loyalties of citizens - Delay immigrant adoption of citizenship - Devalue meaning of citizenship
each of these sets of actors may diverge on the interpretation of their own group interests. This section briefly highlights the interests across and within each of these sets of actors. A. Immigrants Immigrants have been supportive of the recognition of dual nationality by their countries of origin, and as noted earlier, have often been instrumental in securing its passage in their countries of origin. While some immigrant community leaders want dual nationality because they believe it will lower the costs of investing in, and eventually returning to their countries of origin, others believe dual nationality will make it easier to remain in their new countries of residence by allowing immigrants to have legal rights as nationals in their countries of origin (such as the right to hold property and invest without restrictions) while exercising political rights in their new countries of residence. There is an on-going debate, for instance within the Colombian community in the United States, about which strategic goal of dual nationality immigrants should emphasize. On the one hand, there are elements of the Colombian immigrant community that wish to highlight dual nationality's role in support of 312
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mobilization and participation in the United States. The president of Colombia's Liberal Party organization in New York City stated, for example: The Colombian community should have a presence in Colombian politics as well as American politics ... Now that the law has been passed so that no Colombian ... will lose their nationality, this will open a large political arena. ... The Colombian community will organize, and should organize in the United States.23 There are factions among Colombians pulling in other directions, however. Take for example the following exchange at a meeting of some of the leaders of Colombian organizations in New York City: J: The important thing is to first solve our problems here. S: Dual nationality opens the doors to enter into politics here.... F: If we live here, and have children, and pay taxes, then we should have a say, ... but we should also have the right to participate in Colombia, to vote in the presidential elections there. Many Colombians come here to save a little money, and then return to buy a house for their retirement. J: hat's how we come here. But. ... people have children, they stay here for 25 years. R: Many people go back to Colombia. Unfortunately, we haven't done it ourselves. J: It makes more sense to work in this country than over there. ... We have to have priorities. I suggest we establish our priorities in the community here. To see how we can get involved in the political process here. R: I think we should be involved in politics in Colombia.24 Whatever their disagreements, immigrant activists see dual nationality as enhancing long-term investment and participation, both in the home country and in the United States. Couched in general terms, dual nationality appeals to both those immigrants who wish to stay in the receiving country and those who wish to return to their countries of origin. If there is a downside to dual nationality, it might be that dual nationals are expected to fulfill their obligations to two national governments, not only one. In 23 24
Interview with the president of the Partido Liberal Colombiano, New York City, August 9, 1991. FEDOCOL Meeting (Spanish), July 11, 1991 (J, S, R are male; F is female). This same division gets played out in other organizational settings as well. Tim Golden of the New York Times told me of the tensions at a Lions Club meeting he went to between the old guard who wanted to keep a focus on the home country, and a younger generation of activists more interested in the immigrant situation in New York City (Conversation; April 1, 1991). And while some of the leadership of the Partido Liberal Colombiano favors active involvement in American electoral politics, the Conservative Party is moribund, and representatives of the Alianza Democratica, a party on the left of the political spectrum in Colombia, have been more interested in getting people to vote in Colombia's elections (Notes, "Colombia, Una Patria Que Nos Espera," Alianza Democratica, June 11, 1992). 313
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theory this might require dual military service, or dual tax payments on investments and earnings. In practice, these difficulties have usually been resolved by bilateral treaties between the sending and receiving countries (for example, on military service, see Legomsky, this volume). In addition, Yang (1994) believes that dual nationality might simply confuse immigrants, leading to lower rates of participation in all spheres. Finally, there is the question of full political rights, or "dual citizenship," for immigrants in their countries of origin, rather than simply the retention of social rights under dual nationality. Immigrants abroad, though in most cases a relatively small fraction of the population, already have the capacity, because of their relative financial clout, to influence elections, or at least candidacies. So far, their political influence has been largely channeled through campaign contributions, with Los Angeles, New York, and Miami now required campaign stops for politicians in national and even state and local campaigns across Latin America. Increasingly, there is talk of extending this influence to direct participation in national elections.25 Colombia and Peru have had a system of voting through their consulates for some time; Mexico and the Dominican Republic have talked of putting similar systems into place.26 The consequence for domestic politics in sending countries is uncertain. B. Sending Countries For sending countries, the question of dual nationality has both domestic and international implications. The domestic goal of dual nationality policies has often been, implicitly or explicitly, to foster ties between expatriates and countries of origin. These ties will, policy makers hope, pay off in terms of current remittances and future investments. The importance of maintaining these ties has increased over time as the number of immigrants abroad has increased. The United States, for example, received 4.5 million immigrants in the 1970s, 7.3 million in the 1980s, and another 5 million from 1990 through 1995.27 Almost half of those arriving were from Latin America; there are approximately ten million first generation Latin American immigrants in the United States today. Of these immigrants, a significant number remit a portion of their income, in some cases a substantial portion, back to their home country. Because of the increasing numbers of immigrants in the United States, remittances today are almost eight times what they were in 1980. Flows just to Central America ^Q
25 26 27 28
314
See, for example, the series of articles by Raul Ross Pineda, Director of Mexican Affairs, Comite de Servicio de los Amigos Americanos, Chicago, appearing in La Jornada, 1998. See the studies commissioned by the Mexican Federal Electoral Institute on the subject, available at http://www.ife.org.mx/ (February 9, 2000). "Census: Immigrants at New High," Associated Press, August 25, 1995. In 1989, for example, Colombian immigrants in the United States were remitting an astonishing 17% of their incomes back to Colombia. The figures for other Latin American immigrant groups are equally impressive: Dominicans remitted 11%, Salvadorans 10%, Mexicans 8% and Guatemalans 6% of their annual incomes (see de la Garza et al. 1997: 4, Table 4).
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and Mexico increased from nearly $1 billion dollars in 1980, to $3.7 billion in 1990, to nearly $8 billion in 1998 (Orozco 2000:1; Waller Meyers 1998). Annual remittances in 1994 totaled over $4 billion for Mexico, $1 billion for El Salvador, about $400 million for the Dominican Republic, and over $200 million each for Colombia and Guatemala.29 While in dollar amounts remittances to Mexico are the greatest, as a percentage of the sending countries' exports, remittances from immigrants abroad are more crucial for countries like El Salvador (over 100 percent the value of exports in 1993) and the Dominican Republic (over 70 percent of the value of exports), than for Mexico (over 10 percent the value of exports) (de la Garza et al. 1997). Given the size of the flows, the potential impact of these remittances on sending countries' economic development is significant. For this reason, sending countries' governments are increasingly involved in actively maintaining ties to their expatriate communities.30 A number of Latin American governments, for example, have established programs to organize their immigrant communities in the United States. Of these, the most developed are the programs initiated by the Mexican government to encourage Mexican immigrants to form associations, and prompting the membership of these organizations to remit funds and invest in their local communities of origin. Programs at the federal level include the Paisano program31 and the Program for Mexican Communities Living Abroad (PMCLA). The Paisano program is designed to improve the treatment that the returning migrants receive at the hands of Mexican officials by reducing corruption and abuse (Orozco 2000: 20). The PMCLA, established in 1990, provides a wide range of services to Mexican immigrants in the United States through the Mexican consular network32 and first-generation immigrant organizations sponsored by the consulates, as well as channeling remittances toward local development projects (Gonzalez and Schumacher 1998). As Orozco notes, hometown associations have served as platforms for matching fund schemes that pool remittance monies with government funds and expertise, and occasionally with private sector contributions, for locally focused economic development projects (Orozco 2000: 15).33 29 30 31
32 33
Because these estimates are based on the World Banks' publications reflecting central bank data, they almost certainly underestimate the total amount of remittances to these countries. Just as sending countries were in the 19th century, which accounts for the predominance of ius sanguinis regimes today. See the Paisano program webpage at http://www.paisano.gob.mx/ (February 9, 2000). See also Patrick McDonnell, "Mexico Vows to Curb Abuses Against Returning Citizens," Los Angeles Times, December 1, 1995, Los Angeles Times, p. B3. Such as health, education, legal and social services (Orozco 2000: 20). Interestingly, many outreach programs in Mexico are being conducted by various state governments, rather than the federal government. The governments of Zacatecas, Jalisco and Oaxaca have all established matching programs for remittances originating from Zacatecan clubs in the United States. See R. Marquez, "Seminario Sobre Migracion Internacional y desarollo en Norte y Centro America," Programa Dos Por Uno, Gobierno de Zacatecas, Mexico, May 1998; cited in Orozco 2000: 23. Indeed, federal programs were implemented partly to re-establish central control over autonomous state-level initiatives, like the Program for Zacatenos Abroad. 315
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There have been similar, though weaker, efforts on the part of other sending nations' governments as well. The Dominican Republic has begun a program of cooperation with Dominican immigrant organizations in the U.S., helping to establish the Dominican American Roundtable in 1997 to help coordinate and promote a common agenda for Dominicans in the United States.34 El Salvador has also begun outreach to Salvadoran immigrant groups in the United States through its embassy and consulates. The Consejo National para la Cultura y el Arte, the Salvadoran government agency that oversees the activities of Casas de la Cultura in El Salvador, is now working to open similar branches in the United States (Landolt 1997: 18).35 The Guatemalan embassy is considering initiating similar outreach efforts (Orozco 2000: 22). The Colombian Ministry of Foreign Relations established the Program for the Promotion of Colombian Communities Abroad in 1996 (PPCCE), which was intended, at least initially, to survey the Colombian population abroad and its needs (Guarnizo 1997: 14). Most of these programs are still in their beginning stages. Dual nationality has a foreign policy component for sending countries as well. A clear example are the policies pursued by the Mexican government. One of the goals of the Mexican organization effort among its expatriates in the United States is to mobilize Mexican-descent dual nationals as a lobbying group in the United States around issues of concern to Mexico. A prime example of this strategy was the Mexican lobbying effort during the negotiations surrounding the North American Free Trade Agreement and its implementation. The Mexican government spent considerable resources to build cross-national interest groups around trade issues. While much of this effort has been focused on elites in Mexico and the United States, Mexican consulates in the United States have been encouraging Mexican nationals in the United States to naturalize as U.S. citizens, while keeping their nationality as Mexicans as well. The goal is to have a potentially significant swing group with ties and influence with both the United States and Mexico, serving as an important linchpin in relations between the two countries. Other Latin American and Caribbean immigrant groups have had some significant lobbying successes; Central American and Haitian immigrant groups in the United States, for instance, have successfully lobbied the U.S. government for stays of deportation and amnesties. In general, sending states have been leery of extending political rights like voting and election to office for their nationals abroad (the Mexican government, for instance, draws a clear distinction between the recognition of dual nationality and dual citizenship - nationality plus political rights). While, as noted above, Colombia 34
35
316
See the Dominican American Roundtable website at
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and Peru have allowed voting from their consulates overseas, other Latin American countries exploring the option of expatriate voting have postponed making any commitments.36 Mexico, the Dominican Republic, and Haiti, for instance, all of which had talked of allowing voting abroad at some point, seem to have shelved their plans indefinitely.37 Because immigrants are important sources of campaign contributions, political candidates and parties from sending countries will court them. By the same token, however, the independent power base that their financial resources allow them may be one of the reasons that sending country governments are reluctant to allow them full political citizenship. Sending countries may fear that immigrants may become a political loose cannon.38 There is no single logic to a state's decision to allow dual nationality. All states see dual nationality as a way to maintain ties with their citizens or ex-citizens abroad. But what consequences states think this will have differs. Some states believe this may encourage continuing or renewed political attachment to the immigrants' country of origin, and an increased possibility of return immigration. Others may simply wish for economic re-investment through immigrant remittances. Others may wish to see their nationals abroad naturalize as citizens of their receiving countries so they can function as effective immigrant lobbies. Some countries, like Mexico, may want all of the above. However, the most powerful incentives for sending countries to maintain ties with their emigrants abroad are almost certainly economic rather than political. 36 37
38
In Colombia, the right to vote abroad preceded recognition of dual nationality. Voting for Presidential candidates through Colombian consulates began in 1958. Mexican proposals for allowing voting from abroad stalled in the Mexican Congress, though the Mexican Congress did approve an amendment in 1996 which removed a requirement that Mexicans travel to their hometowns to register to vote, which for decades effectively barred emigrants in the United States from taking part in Mexican elections. Sam Quinones, "Death of Voting-Abroad Bill in Mexico Was Simple Math," San Diego Union Tribune, July 3 1998; Sam Dillon, "Don't Be A Stranger Mexico Says to Emigres in the U.S.," New York Times, December 13, 1996. Since 1994 the Dominican Republic has allowed immigrants to vote in Dominican elections, but still requires them to return to the island to vote, though apparently the main parties have begun setting aside at least some spots on their parties' electoral slates for Dominicans overseas (Guarnizo 1997:10). Although Haitians abroad were referred to as the "Tenth Department" by President Aristide when he was in exile in the United States in the early 1990s (Basch et al. 1994: 146-147), after the departure of the military government Haiti has not implemented dual nationality, much less voting abroad. Benedict Anderson, for instance, writes of his worries that this long-distance dabbling in home country politics could have consequences much worse than just the blurring of national political systems and an opening for opportunists. It creates, he says,"a serious politics that is at the same time unaccountable. The participant rarely pays taxes in the country in which he does his politics; he is not answerable to its judicial system; he probably does not cast even an absentee ballot in its elections because he is a citizen in a different place; he need not fear prison, torture, or death, nor need his immediate family. But, well and safely positioned in the First World, he can send money and guns, circulate propaganda, and build intercontinental computer information circuits, all of which can have incalculable consequences in the zones of their ultimate destinations" (Anderson 1994: 327). These concerns have been raised from the point of view of receiving countries as well, as commentators have pointed out what they feel as is the undue influence of ethnic lobbies (see Ahari 1987; Watanabe 1984).
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C. Receiving Countries While sending countries have been open to the suggestion of dual nationality, actively encouraging expatriates' ties to the home country, historically receiving countries have been more suspicious. Dual nationality has been thought to undermine the notion of national sovereignty and singular loyalty to the sovereign nation. In addition, dual nationality poses thorny questions around issues of political rights, conscription, taxation, property rights, and extradition. For these reasons, many countries have sought to avoid dual nationality. Since 1795, for example, the United States has required immigrants who wish to naturalize to take an oath of allegiance, in which they pledge to set aside any previous loyalties. The oath which immigrants are required to swear today on becoming naturalized citizens of the United States, reads, in rather archaic and high-sounding formal language: "I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen." In other words, new citizens are expected, at least in theory, to have one, and only one, national loyalty of any kind - to the United States of America. Increasingly, however, both U.S. and international law have evolved in the direction of increased ambiguity or outright tolerance in favor of dual nationality. For example, U.S. Supreme Court rulings allow U.S. citizens to retain their citizenship, if they wish, when they naturalize in another country.39 And in practice, a citizen from another country may, upon taking on American citizenship, passively retain citizenship rights in that country if that other country does not recognize, or is indifferent to, the new attachment formed in the United States. Formally, then, the United States discourages dual nationality, while in practice pursuing a "don't ask, don't tell" policy.40 As an INS spokesman noted "I'm not sure we particularly like dual citizenship or approve of it, but we recognize it" (Miller 1998). Increasing tolerance of de facto dual nationality has allowed an opening that permits immigrants 39
40
318
The Supreme Court of the United States has stated that dual nationality is "a status long recognized in the law" and that "a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other," Kawakita v. United States, 343 U.S. 717, 723-24 (1952). The Court essentially reaffirmed this position in Afroyim v. Rusk, 387 U.S. 253 (1967), and Vance v. Terrazas, 444 U.S. 252 (1980), in which it ruled that to lose American citizenship an individual must explicitly intend to surrender it; loss cannot come about merely by committing certain expatriating acts listed in the statute For a comprehensive overview, see Spiro 1997. Later amendments incorporated the Afroyim doctrine into section 349(a) of the U.S. Immigration and Nationality Act, 8 U.S.C. § 1481 (2000). In order for loss of U.S. citizenship to occur in connection with naturalization elsewhere, it must be established that citizenship in another country was obtained voluntarily by a person 18 years or older with the intention of relinquishing United States citizenship. Acquiring another nationality, or even serving in another country's government or military does not end a person's U.S. citizenship, provided he or she lacks the express intention of giving up American citizenship. This stance was clearly reflected in comments of government participants in a preliminary meeting of the German Marshall Fund Dual Nationality Project, Washington, July 19, 1999.
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to become citizens in their country of residence without losing all their rights as nationals in their country of origin. The increasing prevalence of dual nationality has consequences for both foreign and domestic policy. For receiving countries like the United States, toleration of dual nationality might be seen as contributing to an overall strategy of using immigration policy to achieve foreign policy objectives. For instance, in Central America the United States has adjusted immigration policy (including dual nationality, but also taking into account deportation policy, remittances, and temporary stays) to foster the broader goals of promoting democratic regimes and economic development in the region.41 Just as sending countries see remittances as a tool for economic development, so the United States may recognize it as a form of foreign aid (indeed, far outweighing formal U.S. aid, say, to Central America). In this view, by tolerating dual nationality and sending countries' efforts to encourage remittances, the United States promotes stability in sending country regions. Of course, the counter-argument might be that encouraging remittances actually undermines democracy in these regions by encouraging the more active and entrepreneurially-minded to leave. Moreover, the more isolationist-minded might see all this as another example of the pernicious effects of foreign entanglements. Disagreements on the consequences of dual nationality persist on the domestic side as well. Some commentators have dwelt on the possible negative consequences of dual nationality, arguing that: Citizenship, like marriage and religion, requires a strong sense of commitment. Similarly, citizenship in the United States requires more than just a willingness to abide by a new political system; it calls for a change in one's sense of self and membership. ... Dual citizenship, in which individuals belong to two "peoples," is inconsistent with the moral and philosophical foundation of American constitutional democracy (Pickus 1998: 25). The existence of competing multiple allegiances robs citizenship of any substance, critics fear.42 If citizenship is like marriage, holding dual loyalties under dual nationality, writes columnist Georgie Anne Geyer, is "akin to bigamy."43 Dual nationality encourages immigrants to retain their ties to their home countries at the expense of deepening their new ties to the country in which they now reside. In addition, some commentators are quite adamant that dual nationality devalues American citizenship. As Pickus relates the sense of the debate in a recent conference on American citizenship, opponents of dual nationality felt that: As a person's affection and commitment are divided among different interests, as is likely to happen with dual citizenship, that affection and commitment will 41
42 43
For the impact of economic remittances, see de la Garza et al. 1997; on 'social remittances' see Levitt 1998. Mark Fritz, "Dual Citizenships Create Dueling Family Allegiances," Los Angeles Times, April 6, 1998. Cited in Spiro 1998:9. The bigamy analogy comes up a lot among critics of dual nationality. 319
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also weaken. Dual citizens will have less time for civic participation in American public life, since they have allegiances (even if secondary) elsewhere. In terms of commitment and obligation, dual citizens are cheating their fellow "single" citizens in both countries (Pickus 1998: 24). In this view, at the very least the alienation of affection caused by dual nationality may create new constraints on American foreign policy, exemplified by the Irish, Jewish, Cuban, Greek, and Turkish cases (see Ahari 1987; Watanabe 1984). At worst, it could mean the meddling of other countries in the domestic affairs of the United States. The remarks of the Mexican consul in Los Angeles in which he said, commenting on dual nationality, "[e]ven though I am saying this part serious and part joking, I think we are practicing la reconquista in California,"44 were only fuel on the fire of detractors' fears of the consequences of these policies. On the other hand, proponents for the recognition of dual nationality have made two kinds of arguments. The first is practical: in an increasingly mobile and interdependent world, the strict policing of the demarcations of national membership seems increasingly futile and counter-productive (Schuck 1997; Spiro 1998). Dual nationality is simply the recognition of a changing world. Proponents have also argued, however, that dual nationality should be not only tolerated, but actively embraced. Dual nationality here is seen as congruent with membership in the American polity. The argument goes as follows: Receiving countries like the United States have an interest in seeing to it that new immigrants become full members of the polity, because their political, economic, and social marginality weakens democratic institutions. Since for immigrants dual nationality can be a means to reconcile memberships in both their countries of residence and of origin, dual nationality is likely to lead to higher naturalization rates in the United States. To the extent that dual nationality facilitates the incorporation of new immigrants, then it can be seen as strengthening, rather than weakening the practice of American citizenship (JonesCorrea 1998).
Of the three sets of competing interests described above, two - those of immigrants and sending countries - are more clearly disposed toward favoring dual nationality. The interests of receiving countries are much more mixed. There are still significant reservations, for instance, among American commentators and policy-makers toward dual nationality. Are these reservations justified? One approach is to ask what evidence we have that dual nationality has detrimental effects for American citizenship, and specifically, for the naturalization of immigrants.
44
320
Sam Howe Verhovek, "Torn Between Nations, Mexican Americans Can Have Both," New York Times, April 14, 1998, p. A12.
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III. DATA The debate around dual nationality and naturalization in sending countries like the United States has taken place largely in the absence of empirical data supporting the arguments one way or the other. In the only piece that attempts any analysis of this sort (Yang 1994), the author found that dual nationality discouraged naturalization in the United States. The odds of naturalization of immigrants from countries that recognize dual nationality, he calculated, were about 20 percent lower than those from countries without provisions for dual nationality. Yang speculates that this may have been due to immigrants' confusion about their rights under dual nationality, or perceptions that dual nationality, rather than protecting rights, merely adds additional responsibilities (Yang 1994: 473-474). On the other side of the debate, Jones-Correa and Spiro have both argued that dual nationality - by reducing the costs immigrants face in becoming naturalized citizens in the United States - is likely to increase naturalization rates (Jones-Correa 1998: ch. 8 and 10; Spiro 1998). However, in these pieces, both pro and con, positions are often asserted rather than demonstrated. Methodology is underdeveloped and analyses are based on one-time readings of data, rather than observations across time. The data presented below are meant as a first step in testing the hypotheses. Ideally, a review of the hypotheses on the impact of the recognition of dual nationality in sending countries on naturalization rates of immigrants from those countries in the United States, could rely on data on the naturalization rates of immigrants in the United States, by country, over time. These data do not exist. At best, the Immigration and Naturalization Service (INS) in the United States disseminates limited cohort data -publishing, say, the naturalization rate of the immigrant cohort entering in 1977 seen twenty years later, in 1997, and then only for selected countries (INS 1997: 141, Tables K, L). Given that these data are unavailable, this paper relies on a calculation of immigrant naturalization rates in the United States based on available data from the INS and the Census Bureau. The rate of naturalization is estimated by dividing the number of a sending country's immigrants naturalizing in the United States in a given year by the number of immigrants arriving from the sending country seven years earlier. Since permanent residents must wait five years before becoming eligible for U.S. citizenship, applying at the earliest in their sixth year, and receiving citizenship in their seventh year, it seems reasonable to use a seven year period between year of immigration and year of naturalization to estimate immigrants' naturalization rates.45 For instance, in 1997 5,898 immigrants from Peru naturalized as American 45
If anything, this approach provides a conservative estimate of naturalization rates, because most immigrants naturalize after seven years have passed. Johnson et al. (1999) propose an alternative methodological approach, utilizing Census Current Population Survey data to estimate naturalization rates. The advantage of the method used here is that it draws on complete immigration and naturalization figures across the entire period, rather than relying on self-reported information gathered from a sample of respondents in a single survey. 321
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citizens, while in 1990 15,726 Peruvians entered as legal immigrants to the United States. The naturalization rate for Peruvians in the United States in 1997-the ratio of naturalized citizens to new immigrants - would be 0.38. While this calculation of naturalized citizens in a given year (x) to new immigrants to seven years earlier (x-7), is an imperfect estimate of actual naturalization rates of immigrants in the United States, the breadth of the data - yearly immigration and naturalization data from 1965 to 1997-and the range of countries - twenty Latin American countries and another fourteen from the Caribbean - allows us to draw conclusions as to whether the recognition of dual nationality by sending countries might have positive or negative effects on the naturalization of immigrants from those countries in the United States.
IV. EFFECTS ON NATURALIZATION BEFORE AND AFTER RECOGNITION OF DUAL NATIONALITY The examination of the impact of the recognition of dual nationality on naturalization rates in the United States begins here with a comparison of immigrants' naturalization rates as U.S. citizens before and after the decision by their country of origin to acknowledge dual nationality. The data collected run from 1965 to 1997; in this time period nine Latin American countries - Brazil, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Mexico, Panama, and Peru - changed their constitutions or passed legislation recognizing dual nationality. For each of these countries the naturalization rates of their emigrants in the United States increased in the period after recognition of dual nationality. These increases ranged from 22 percent for Panama (which recognized dual nationality in 1972) to 300 percent for Ecuador (1995). Overall, naturalization rates in the United States increased by an average of 105 percent in the aftermath of the recognition of dual nationality by the sending country (see Table 4). Note that immigrants from countries recognizing dual nationality as the result of a top-down state-driven decision-making process (Panama, El Salvador, Peru, Costa Rica, and Brazil) saw less dramatic increases in the naturalization rates of their immigrants in the United States than immigrants from countries which recognized dual nationality via a process of consultation with and lobbying from their immigrants abroad (Colombia, Ecuador, the Dominican Republic; Mexico's change was too recent for data to be available). Immigrants from countries which instituted dual nationality at least partly in response to pressure from their immigrant communities abroad increased their naturalization rates as American citizens by an average of 197 percent. Immigrants from countries where dual nationality was extended solely on the initiative of the sending state increased their naturalization rates by an average of 72 percent. This finding should be interpreted with some caution. The difference in the effects of bottom-up and top-down approaches might be simply reflecting the differences between early adopters of dual nationality like Panama (1972), Peru (1980), and El 322
Dual Nationality in Latin America Table 4 Naturalization Rate for Selected Countries Before and After Their Recognition of Dual Nationality Country and Date of Recognition
Naturalization Rate Before Recognition
Naturalization Rate After Recognition
Brazil, 1996 Colombia, 1991 Costa Rica, 1995 Dominican Republic, 1994 Ecuador, 1995 El Salvador, 1983 Mexico, 1998 Panama, 1972 Peru, 1980
0.33 0.34 0.38 0.26 0.30 0.26 0.25 0.45 0.44
0.66 0.91 0.89 0.58 1.20 0.42 NAa 0.55 0.62
Sources: Table 1; Immigration and Naturalization Service (INS 1969, Tables 14 and 39; INS 1978, Tables 14 and 39; INS 1988, Tables 3 and 51; INS 1997, Tables 3 and 47). a Mexican dual nationality went into effect in March of 1998. Naturalization data for 1998 and onward have not been released as of the time of this writing.
Salvador (1983) and late adopters. The key difference might be time period, rather than the pathway by which dual nationality was adopted. Perhaps immigrants from late adopter nations benefited from the increasing acceptance of dual national status both in their countries of origin and in the United States, or some other factor affecting naturalization rates. However, if we compare the changes in naturalization rates between late-adopter nations (those adopting dual nationality after 1991) making top-down or bottom-up decisions to recognize dual nationality, there is still a difference of 80 percentage points between the two. This lends some support to the view that the choice between the top-down and bottom-up approaches to dual nationality has real effects in outcomes for immigrant naturalization in the United States. The question of timing, however, brings up another issue. The high rates of naturalization of immigrants from countries that are both bottom-up and late adopters of dual nationality - which is to say, all those in the bottom-up group may be unduly affected by the propinquity of their dual nationality amendments to the increase in naturalization following the anti-immigrant backlash in California and the passage of the Welfare Reform Act passed by the U.S. Congress in 1996. The 1996 welfare legislation in particular seems to have played a major role in nudging legal permanent residents to naturalize as U.S. citizens (Singer and Gilbertson 2000). This legislation was designed not only to keep undocumented immigrants from accessing federal public benefit programs, but, more drastically, also to bar permanent legal residents from participation in Social Security and food stamp programs, and to ban all new resident non-citizens from federal means-tested programs like AFDC (Aid to Families with Dependent Children).46 Social services, the reasoning went, were not intended for non-citizens, even if these individuals resided permanently in the United States. Immigrants were meant to contribute to 323
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the well-being of the nation, not to be a burden on the taxpayer. In addition, cutting immigrants from federal social programs would supposedly save the U.S. government tens of billions of dollars a year, a not insignificant amount in the atmosphere of budgetary constraint that pervaded Congress at the time.47 The introduction by the INS of the Green Card Replacement Program in 1992 and of the Citizenship USA program in 1995 also probably had a positive effect on naturalization rates. The Green Card Replacement Program required that long-term permanent residents replace their resident cards with new cards that expire after ten years; many immigrants chose to naturalize rather than apply for new cards (INS 1997). The Citizenship USA program was designed to encourage naturalization and reduce the backlog in the naturalization process.48 As various scholars have concluded, however, neither of these programs sufficiently explains the increase in naturalization among immigrants in the United States following 1994 (Jones-Correa 2000; Johnson et al. 1999).49 The combination of these domestic policy factors accelerated naturalization rates across all immigrant groups, not only those recognizing dual nationality. Between 1994 and 1996 rates of naturalization increased three-fold across all immigrant groups in the United States (see Tables 5a and 5b).50 It may be, therefore, that the increased before and after naturalization rates we see for the bottom-up adapters like Colombia, Ecuador, the Dominican Republic, and Mexico are the result, not of the recognition of dual nationality, but of policy changes in the United States like the 1996 Welfare Reform Act. 46
47
48
49
50
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There are numerous exceptions, however, including emergency Medicaid, disaster relief, child nutrition, and some training and education (Schuck 1997: 27). The legislation also allows states to deny state and local benefits to some categories of immigrants if they wish. Borjas and Hilton claim that "immigrant households accounted for 16.6% of the costs of the AFDC program, 18.4% of the cost of SSI, 11.5% of the costs of Food Stamps, 14.1% of the costs of Medicaid, and 19.0% of the cost of subsidized school breakfasts and lunches. In sum, the 8.8% of persons residing in immigrant households accounted for 13.8% of the costs of the programs, almost 60% more than their representation in the population" (1996: 584). Whatever the accuracy of these figures, arguments like these helped sway legislators in their decision to cut social programs for both legal and undocumented immigrants. The spike in total numbers of immigrants applying for naturalization was also likely the result of the numbers of permanent legal residents created by the 1986 IRCA. This created a pool of immigrants likely to naturalize as early as five years later, by 1992. This might have created artificially high naturalization rates for the period 1992-1997, though the presence of this spike should not affect the analysis presented here. See Johnson, et al. 1999 at http://www.ppic.org/publications/PPIC123/ppicl23.ch5.html#fnO (February 9, 2000). The approval of Proposition 187 by California voters in 1994 may also have encouraged Latino immigrants to naturalize as a way to protect their rights. But the spike in naturalization rates took place across all immigrant groups, not just Latinos, and not just those in California, suggesting that there was more going on to spur naturalization than simply the passage of Proposition 187 (for a fuller discussion see Jones-Correa 2000). For a further discussion of the impact of the 1996 Welfare Reform Act on the naturalization and voting rates of immigrants in the United States, see Jones-Correa 2000.
Table 5a: Naturalization Rates of Selected Latin American Immigrants in the U.S., 1965-1997
Table 5b: Naturalization Rates of Selected Caribbean Immigrants in the U.S., 1965 1997
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V. EFFECTS ON NATURALIZATION BY PERIOD The effects of the introduction of policies like the 1996 Welfare Reform Act can be taken into account by breaking down naturalization rates by time period. The naturalization data for immigrants from Spanish- and Portuguese-speaking countries from 1965 to 1997 are split into two periods - before and after 1991. This year seems a natural breakpoint, marking the beginning of the recent spate of recognition of dual nationality among sending countries in Latin America (see Table 1), and of policies in the United States which might have had an effect on naturalization rates. The comparison made in each of these time periods is between the average naturalization rate of countries recognizing dual nationality and the average rate of those that do not (see Table 6). Table 6 Rate of Naturalization by Time Period Spanish- and Portuguese-Speaking Countries2
Countries Recognizing Dual Nationality Countries Not Recognizing Dual Nationality Countries Not Recognizing Dual Nationality (Excluding Cuba)
1965-1990
1991-1997
0.42b 0.37
0.69c 0.70
0.34
0.61
Other Western Hemisphere Countriesd
1991-1997 Countries Recognizing DualNationalitye Countries Not Recognizing Dual Nationality
0.69 0.50
Sources: Table 1; Immigration and Naturalization Service (INS 1969, Tables 14 and 39; INS 1978, Tables 14 and 39; INS 1988, Tables 3 and 51; INS 1997, Tables 3 and 47). a These include: Argentina, Brazil, Chile, Colombia, Costa Rica, Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, Uruguay and Venezuela for the period 1965-1990, with the addition of Bolivia and Paraguay for the period 1991-1997. b For the period 1965-1990, countries with dual nationality include: El Salvador, Panama, Peru and Uruguay. c For the period 1991-1997, countries with dual nationality include: Brazil, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Panama, Peru and Uruguay. Note that Mexico, whose dual nationality provisions came into effect only in March of 1998, is not included. d These include: Antigua, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, St. Kitts-Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname, and Trinidad and Tobago. e These include: Antigua, Barbados, Belize, Dominica, Grenada, Jamaica, St. Kitts-Nevis, St. Lucia, St. Vincent and the Grenadines, and Trinidad and Tobago. For many of these countries, data before 1988 were not collected by the INS.
In the 1965-1990 period the naturalization rate for immigrants from Latin American countries recognizing dual nationality (at the time, these consisted of only El Salvador, Panama, Peru, and Uruguay) was 42 percent versus 34 percent for 327
M. Jones-Correa
immigrants from those countries not recognizing dual nationality.51 Thus, in this earlier period, immigrants from countries recognizing dual nationality naturalized at a rate eight percentage points greater than immigrants from countries that did not. In the 1991-1997 period immigrants from countries accepting dual nationality (El Salvador, Panama, Peru, and Uruguay again, with the addition of Brazil, Colombia, Costa Rica, the Dominican Republic, Ecuador, and Mexico) naturalized at a rate of 69 percent versus a rate of 61 percent for those countries not recognizing dual nationality.52 Even taking into account period effects - i.e., the impact of domestic policy events like the 1996 Welfare Reform Act - the recognition of dual nationality by their sending countries gives immigrants in the United States an edge again of eight percentage points in naturalizing as U.S. citizens. To put it another way, immigrants from countries recognizing dual nationality were 24% more likely to become U.S. citizens in the period before 1991, and 13% more likely in the period after 1991. It is interesting to note that recognition of dual nationality by sending countries seems to have had a much greater impact on the naturalization rates of immigrants from the former English, French, and Dutch colonies in the Caribbean than it has on immigrants from Spanish- and Portuguese-speaking countries in the hemisphere. Based on U.S. immigration and naturalization data from 1988 to 1997,53 immigrants from those Caribbean basin countries acknowledging dual nationality have rates of naturalization in the United States 38 percent greater than immigrants from countries in that region not recognizing dual nationality (.69 versus.50). This difference is significantly greater than the parallel difference among Latin American nations, as noted above. Given that these former colonies by and large recognized dual nationality at independence (see Table 1), it does not seem they did so because of lobbying from their immigrants abroad. These were top-down, state-driven decisions. In contrast to the evidence presented above for Spanish- and Portuguese-speaking countries, state-driven decision making by these Caribbean nations does not seem to diminish the impact of dual nationality on the naturalization rates of their immigrants as U.S. citizens.
IV. SUMMARY AND DISCUSSION OF FINDINGS Several observations can be drawn from the data presented above: - The recognition of dual nationality among sending countries in the Western 51
52 53
328
These calculations exclude Cuba, whose addition increases the average naturalization rate of countries not recognizing dual nationality to.37. Cuba's naturalization rates in the United States, however, are unique (see Table 5a), and there is a strong argument to be made that Cuban immigration to the United States, and the context of U.S.-Cuban relations, makes the Cuban case unsuitable for inclusion in these comparative statistics. Again, excluding Cuba. Immigration and naturalization data for many of these former colonies are incomplete prior to 1988. Luckily, in any case 1988 is a natural cut-off point for the data. All of these countries recognizing dual nationality did so by 1988 (Trinidad and Tobago were the last to do so, in that year) and no more have since then.
Dual Nationality in Latin America
-
-
-
-
Hemisphere is widespread, and indeed, increased substantially in the 1990s. Four Latin American countries recognized dual nationality before 1991, six more have since then. An additional ten Caribbean basin nations recognize dual nationality, most from the time of their independence. Though the analysis of the effects of the recognition of dual nationality on immigrants' naturalization in the United States is hampered by the availability of data, and obscured somewhat by the concurrent effects of other contributing factors to naturalization rates (such as the 1996 Welfare Reform Act), the data do indicate that recognition of dual nationality by a sending country has a positive effect on naturalization of immigrants from that country in the United States. For Latin American countries, these increases appear to be greater for bottom-up dual nationality policies than for top-down state-led policies. One possible explanation is that bottom-up lobbying efforts by immigrants abroad mean that, when dual nationality is recognized by their countries of origin, a constituency in place is ready to take advantage of the policy shift. For top-down decisions this constituency develops more gradually over time. A second, related, explanation, is that the recognition of dual nationality through the bottom-up process is seen as more legitimate than if it were imposed by the state. Greater legitimacy would translate into higher rates of adoption of citizenship in receiving countries. The increases in naturalization rates in the United States following sendingcountry recognition of dual nationality are greater for former French, English, and Dutch colonies in the Caribbean basin than for Spanish- and Portuguesespeaking countries on the continent. This occurs even though the decisions to implement dual nationality in these Caribbean basin nations were implemented by top-down state-driven policies, rather than as the result of immigrant lobbying from abroad. These findings seem to run counter to the results reported for Latin American dual nationality cases. However, all these Caribbean basin nations had long histories of migration abroad prior to independence, and most were already included (after 1949) under British dual nationality policies. In any event, the constituencies for dual nationality among immigrants abroad were in place before nationhood. The constitutions adopted at independence by these nations simply formalized these prior claims and ties. Again, the key point here is that dual nationality policies have greater effects when they are seen as legitimate rather than imposed. Although dual nationality policies seem to have independent effects on the naturalization rates of immigrants, the dramatic rise of naturalization rates in the United States in response to the passage of the 1996 Welfare Act and other domestic policies, relative to their movement in response to the recognition of dual nationality by countries of origin, indicates that immigrants are still much more sensitive to changes in the policies of receiving countries than to changes in sending country policies. The importance of receiving state policies appears, at the very least, to temper arguments that the state is being eclipsed by the rise of transnational practices (Rouse 1995; Bamyeh 1993; Bhabha 1990), or that policies like dual 329
M. Jones-Correa
nationality simply re-inscribe immigrants within the political sphere of the sending state (Guarnizo 1997; Landolt 1997).
VII. CONCLUSION Dual nationality, as noted at the beginning of this article, is a complex phenomenon. It lies somewhat awkwardly at the intersection of the interests of immigrants, sending states, and receiving states. Immigrants and their sending states, while their interests are not identical, can agree, on the whole, that dual nationality is a positive development. Receiving nations have historically held mixed feelings on the issue. Should they? This article suggests that at least some concerns among critics in the United States on the issue of dual nationality are overstated. Immigrants from countries recognizing dual nationality are more, not less, likely to seek out American citizenship. Dual nationality has relatively small, but positive, effects on immigrants' naturalization as U.S. citizens. This implies that dual nationality is unlikely to threaten American citizenship, and on the contrary, may encourage the incorporation of new immigrants into the American polity. Dual nationality may also have much smaller effects than originally calculated for sending countries. In 1998, for instance, the Mexican government calculated that of the 5.5 million Mexican-born residents in the United States who are permanent, legal U.S. residents, 2.5 million have naturalized as U.S. citizens.54 Another 3 million are their children, who would also be eligible for dual nationality. This meant that there were at least 5.5 million Mexican-origin residents of the United States who were eligible to apply for Mexican nationality before 2003, when the application period ends. According to an informal estimate from the Mexican Embassy,55 up through April 2000 only about 25,000 applications for dual nationality have been filed - a response rate of less than 0.5 percent. While the response rate will surely increase as the deadline approaches, the lack of interest implies that dual nationality policies have less of an impact than sending countries may wish for, and than receiving countries may fear. The same applies to proposals for voting abroad. Mexican proposals for allowing their citizens the right to vote from abroad were greeted in the United States with alarm, as American policy makers suddenly envisioned a million or more Mexicanorigin residents taking part in another country's election. These concerns are almost 54
55
330
Mark Fineman, "Mexicans Another Step Closer to Dual Nationality," Los Angeles Times, December 10, 1996. The Mexican Instituto Federal Electoral's report on the feasibility of implementing voting abroad put the figures at 7.1 million Mexican-born residents in the United States, and an additional 2.7 million second-generation Mexican-origin immigrants. These figures likely include estimates of documented and undocumented immigrants in the United States. Jose Gil Olmos, "Desea Sufragar 80% de los connacionales que residen en el exterior: expertos," La Jornada, November 15, 1998. Telephone Conversation, Mexican Embassy, October 1999, confirmed by representatives of the Mexican Foreign Ministry at a meeting of the German Marshall Fund Project on Dual Nationality, February 17-19, 2000.
Dual Nationality in Latin America
certainly overblown. Although the Mexican Federal Electoral Institute (IFE) conducted a poll indicating that up to 83 percent of respondents wish to have some say in the selection of the Mexican president, most also indicated that they could spare little time to register or cast ballots.56 If the Colombian case is any indication, there will always be a significant gap between the number of residents a country has abroad and the number of those who register, and again between the number registering and those voting. For example, although in 1990 there were over 200,000 Colombians residing in the New York metropolitan region, barely 3,000 turned out to vote in that country's 1990 presidential elections. Again, while 10,000 Colombian immigrants were registered to vote in Colombia's 1998 Senate elections (in which immigrants had a direct stake, since they were electing a Senator who would represent the Colombian community abroad) estimates of the number who voted ranged from 800 to 1,800-a tiny fraction of the Colombian community in the United States.57 For these reasons, while increasing numbers of countries will likely recognize the existence of dual nationality, it is unlikely to have a decisive impact on the political processes of either sending or receiving polities. This does not mean that the dual nationality debate will disappear; on the contrary, it is likely to remain a controversial topic in receiving countries. Individual cases like that of the New Jersey city councilman who ran for the Colombian senate in 1998 are likely to continue to raise critics' hackles (Miller 1998), and there will still be accusations that dual nationality, by encouraging multiple allegiances, undermines and devalues American citizenship. Concern will still be expressed that dual nationals may choose U.S. citizenship instrumentally, and because their attention is divided, do not devote the same energies to American citizenship as do those without a dual nationality option. The analysis presented above does not try to address all these issues, but should help keep them in perspective.
Bibliography Ahari, Mohammed (1987), Ethnic Groups and U.S. Foreign Policy (Westport, Connecticut: Greenwood Press). Anderson, Benedict (1994), "Exodus," Critical Inquiry, 20 pp. 314-27. Appadurai, Arjun (1990), "Disjuncture and Difference in the Global Cultural Economy," Public Culture 2:2 pp. 1-24. Bamyeh, Mohammed A. (1993), "Transnationalism," Current Sociology 41:3, pp. 1-95. Basch, Linda, Nina Glick Schiller, and Cristina Szanton-Blanc (1994), Nations Unbound: Transnational Projects, Postcolonial Predicaments, and Deterritorialized Nation States (Basel, Switzerland: Gordon and Breach). Borjas, George and Lynette Hilton (1996), "Immigration and the Welfare State: Immigrant 56 57
Olmos, "Desea sufragar," op cit.; Sam Dillon, "Mexico Weighs Voting by Its Emigrants in U.S.," New York Times, December 7, 1998. Mark Fritz, "Dual Citizenships," op cit. 331
M. Jones-Correa Participation in Means-Tested Entitlement Programs," Quarterly Journal of Economics 111:2, pp. 575-604. de la Garza, Rodolfo, Miguel Baraona, Manuel Orozco, Harry P. Pachon and Adrian D. Pantoja (1998), "Family Ties and Ethnic Lobbies: Latino Relations with Latin America," A Research Project of the Tomas Rivera Policy Institute. —, Manuel Orozco and Miguel Baraona (1997), "Binational Impact of Latino Remittances," The Tomas Rivera Policy Institute Policy Brief. Feldblum, Miriam and Douglas Klusmeyer (1999), "Immigrants and Citizenship Today: A Comparative Perspective," Research Perspectives on Migration 2:2, pp. 1-5. Georges, Eugenia (1984), "New Immigrants and the Political Process: Dominicans in New York," New York Research Program in Inter-American Affairs, New York University. Gonzalez Gutierez, Carlos (1993), "The Mexican Diaspora in California: Limits and Possibilities for the Mexican Government," in Abraham Lowenthal and Katrina Burgess eds., The California-Mexico Connection (Stanford: Stanford University Press) pp. 221-238. — and Maria Esther Schumacher (1998), "La Cooperacion Internacional de Mexico con los Mexicano-Americanos en los Estados Unidos: el caso del PCME," in Olga Pellicaer and Rafael Fernandez de Castro eds., Mexico y Estados Unidos: las rutas de la cooperacion (Mexico D.F.: Institute Matias Romero). Graham, Pamela (1997), "Reimagining the Nation and Defining the District: Dominican Migration and Transnational Politics," in Patricia Pessar ed., Caribbean Circuits: New Directions in the Study of Caribbean Migration (New York: Center for Migration Studies) pp. 91-126. Guarnizo, Luis Eduardo (1997), "On the Political Participation of Transnational Migrants: Old Practices and New Trends," paper presented at the Social Science Research Workshop on "Immigrants, Civic Culture and Modes of Political Incorporation: A Contemporary and Historical Comparison," Santa Fe, New Mexico, May 1-4. Gurak, Douglas and Joseph P. Fitzpatrick (1984), "Kinship Networks and the Settlement Process: Dominican and Colombian Immigrants in New York City," Research Bulletin (New York: Hispanic Research Center, Fordham University) 7:3-4, pp. 7-11. INS (1997), Statistical Yearbook of the Immigration and Naturalization Service (Washington D.C.: Government Printing Office). — (1988), Statistical Yearbook of the Immigration and Naturalization Service (Washington D.C.: Government Printing Office). — (1978), Statistical Yearbook of the Immigration and Naturalization Service (Washington D.C.: Government Printing Office). — (1969), Annual Report of the Immigration and Naturalization Service (Washington D.C.: Government Printing Office). — (1965), Annual Report of the Immigration and Naturalization Service (Washington D.C.: Government Printing Office). Johnson, Hans, Belinda Reyes, Laua Mameesh and Elisa Barbour (1999), "Taking the Oath: An Analysis of Naturalization in California and the United States," Public Policy Institute of California, unpublished paper. Available on the web at: Public Policy Institute of California, http://www.ppic.org/publications/PPIC123/index.html (February 23, 2000). Jones-Correa, Michael (1998), Between Two Nations: The Political Predicament of Latinos in New York City (Ithaca: Cornell University Press). — (2000), "Seeking Shelter: Immigrants and the Divergence of Social Rights and Citizenship in the U.S." in Randall Hansen and Patrick Weil eds., Reinventing Citizenship: Dual 332
Dual Nationality in Latin America Citizenship, Social Rights and Federal Citizenship in Europe and the United States (New York: Berghahn Press). Landolt, Patricia (1997), "Salvadoran Transnationalism: Towards the Redefinition of The National Community," Working Paper 18, Program in Comparative and International Development, The Johns Hopkins University. Legomsky, Stephen H. (2002), "Dual Nationality and Military Service: Strategy Number Two," this volume. Levitt, Peggy (1998), "Social Remittances: Migration Driven Local-Level Forms of Cultural Diffusion," International Migration Review 32:4, pp. 926-948. Miller, John (1998), "Loyalty Duel: Will the Rise of Dual Citizenship Create a World Without Patriotism?," National Review May 18,1998. Orozco, Manuel (2000), "Remittance and Markets: New Players and Practices," part of a project by the Tomas Rivera Policy Institute (TRPI) and the Inter-American Dialogue (IAD) entitled The Developmental Role of Remittances in U.S. Latino Communities and in Latin American and Caribbean Countries. Pickus, Noah (1998), "Becoming American/America Becoming," Final Report of the Duke Workshop on Immigration and Citizenship (Durham, NC: Terry Sanford Institute of Public Policy, Duke University). Portes, Alejandro and Ramon Grosfoguel (1994), "Caribbean Diasporas: Migration and Ethnic Communities," Annals of the American Academy of Political and Social Science 536, pp. 48-69. Rouse, Roger (1995), "Thinking Through Transnationalism: Notes on the Cultural Politics of Class Relations in the Contemporary United States," Public Culture 7:2, pp. 353-402. Schuck, Peter (1997), "The Re-Evaluation of American Citizenship," Georgetown Immigration Law Journal 12:1 pp. 1-34. Singer, Audrey and Greta Gilbertson (2000), " Naturalization in the Wake of Anti-Immigrant Legislation: Dominicans in New York City," Working Paper No. 10, International Migration Policy Program, Carnegie Endowment for International Peace. Spiro, Peter (1998), "Embracing Dual Nationality," Occasional Paper No. 1, International Migration Policy Program, Carnegie Endowment for International Peace. — (1997), "Dual Nationality and the Meaning of Citizenship," Emory Law Journal 46:4, pp. 1411-1485. Waller Meyers, Deborah (1998), "Migrant Remittances to Latin America: Reviewing the Literature," Working Paper, Inter-American Dialogue and Tomas Rivera Policy Institute. Watanabe, Paul (1984), Ethnic Groups, Congress and American Foreign Policy: The Politics of The Turkish Arms Embargo (Westport, Connecticut: Greenwood Press). Yang, Philip (1994), "Explaining Immigrant Naturalization," International Migration Review 28:3, pp. 449-477.
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CHAPTER 10 COMMENT
DEVELOPMENT OF DUAL NATIONALITY UNDER GERMAN LAW
Marianne Wiedemann
I. FACTS AND FIGURES ON DUAL NATIONALITY IN THE FEDERAL REPUBLIC OF GERMANY In 1999, 7.344 million aliens were living in the Federal Republic of Germany. This represents nine percent of the population. More than half of them have been living in Germany for more than ten years, about 40 percent for more than fifteen years, and a third for twenty or more years. Of the total, 1.66 million (22.5 percent of all aliens) were born in Germany.1 On the other hand, in 1998 a total of 291,331 aliens were naturalized, representing 1.46 percent of the foreign population. More than half of them were Turkish nationals. Of the total, 241,422 (82.9 percent) had a right to naturalization, and 49,909 (17.1 percent) were naturalized by a discretionary decision. About 20 percent were naturalized with acceptance of dual nationality, by the way of exception.2 The exact number of dual nationals living in Germany is not known; it is assumed to be at least two million, but this figure cannot be established for certain.
II. CURRENT RULES ON THE ACCEPTANCE OF DUAL NATIONALITY A. Relevant Acts on Naturalization In Germany two laws regulating the application for naturalization are simultaneously in force: the Aliens Act of 19903 (Auslandergesetz 1990) and the Nationality Act of 1
2 3
The Federal Government's Commissioner for Foreigners' Issues, Facts and Figures on the Situation of Foreigners in the Federal Republic of Germany, 19th edition, October 2000, see www.bundesauslaenderbeauftragte.de. Ibid. Of 9.7.1990, BGB1. I, p. 1354.
David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 335-345 © 2003 Kluwer Law International. Printed in Great Britain.
M. Wiedemann
19994 (Staatsangehorigkeitsgesetz, abbr. StAG), which entered into force on January 1, 2000, superseding the Imperial Nationality Act of 1913 (Reichs- und Staatsangehorigkeitsgesetz, abbr. RuStAG).5 The main difference between these regulations is that under the Aliens Act the applicants for citizenship have a right to naturalization if they fulfill all the pre-conditions. In contrast, naturalization on the basis of the StAG is implemented through a discretionary decision. B. The Aliens Act of 1990 (Auslandergesetz 1990) The German Aliens Act includes a chapter on facilitated naturalization of aliens with long-term residence in Germany as well as their spouses and their minor children (section 85 of the Aliens Act). The intention of this legislation was to simplify the naturalization procedure for migrant workers and aliens belonging to the second and the following generations. However, applicants are still, in principle, only naturalized on condition that they abandon their original citizenship.6 On the other hand, the law provides for numerous exceptions to the principle of avoidance of dual nationality (section 87 of the Aliens Act). The applicants have a claim to naturalization with acceptance of dual nationality if they are either unable to abandon their original citizenship or if they can renounce it only on extremely difficult conditions. The main exceptions included in the Aliens Act are the following:7 - The law of the foreign state does not provide release from citizenship. - The foreign state refuses release from citizenship on a regular basis, and the applicant handed over a demand for release to the competent authority in order to have it forwarded to the foreign state. - The foreign state refuses release from citizenship for reasons that the applicant is not responsible for or attaches unreasonable conditions to release, or, if the application is submitted completely and correctly, does not decide on it within an appropriate period of time. - The only obstacle to the naturalization of an older person is the occurrence of plural nationality, the release from citizenship causes disproportionate difficulties and the refusal of naturalization would be an unreasonable hardship. - Release from citizenship leads to considerable disadvantages for the applicant, especially under economic or financial aspects, which go beyond the loss of civil rights. - The applicant is a victim of political persecution or a recognized refugee. Nationals of Member States of the European Union have a claim to naturalization 4 5 6 7
336
Cf. Citizenship Reform Act of 15.7.1999, BGB1. I, p. 1618. Of 22.7.1993, RGB1., p. 583; last Amendment of 16.12.1997, BGB1. I, p. 2942. Cf. section 85 para. 1 ( 1 ) No. 4 of the Aliens Act. Cf. section 87 para. 1 (2) No. 1-6 of the Aliens Act. For details see Kreuzer, Double and Multiple Nationality in Germany after the Citizenship Reform Act of 1999, this volume.
Comment: Development of Dual Nationality under German Law
with acceptance of dual nationality in case of reciprocity.8 Dual nationality can also be accepted by a discretionary decision when the foreign state grants release from citizenship on condition of doing military service. In this case the applicant for naturalization must have attended school in Germany, and he must have been living in Germany when he reached the age at which the military service obligation arises. If these pre-conditions are fulfilled, the administrative authorities may make an exception to the principle of avoidance of dual nationality. The applicant, however, does not have a firm right to such an exception.9 C. The Nationality Act of 1999 (Staatsangehorigkeitsgesetz) On January 1, 2000, the new German Nationality Act (StAG) became effective.10 It contains several amendments to the former German citizenship legislation, the Imperial Nationality Act (RuStAG), dated 1913, which had also been repeatedly amended since then. Both acts provide for the acquisition of German citizenship by descent, by legitimization, by adoption, or by naturalization, generally conditioned on the renunciation of a former nationality according to administrative guidelines. In addition to ius sanguinis, which has been the leading principle of the RuStAG, the acquisition of German citizenship by ius soli was newly introduced in the StAG of 1999. Naturalization pursuant to section 8 of the Nationality Act and its complementary guidelines is based upon a discretionary decision. This means that there exists no right to be naturalized. As a rule applicants have to renounce their original citizenship. This requirement can be met by loss of original nationality by law, by a declaration of the applicant, or by release of citizenship by the state of origin. The exceptions to the principle of avoidance of dual nationality according to administrative guidelines are very similar to those of the Aliens Act.11 In addition, dual nationality may also be permitted if a former German citizen lost his or her German nationality by marrying an alien or if there is a special public interest in the naturalization of the applicant even with acceptance of dual nationality. Naturalization of spouses of German nationals is also conditional upon the abandonment of the original citizenship unless an exception can be made according to section 87 of the Aliens Act (cf. section 9 para. 1 StAG). In addition, it is expected that the applicants will integrate. If these pre-conditions are met, the alien partner of a German "should" be naturalized. This means that he or she has no right to naturalization, but the discretion of the administrative authorities to deny naturalization is very limited. 8 9 10 11
Cf. section 87 para. 2 of the Aliens Act. Cf. section 87 para. 3 of the Aliens Act. See infra IV. for details. See No. 8.1.2.6.3 StAR-VwV of 13.12.2000, published in Bundesanzeiger of 31.1.2001, p. 1418 (No. 21a). 337
M. Wiedemann
III. STRIVING FOR REFORM OF GERMAN NATIONALITY LAW: DISCUSSION AND PROPOSALS In the context of a general debate about Germany's immigration policy in the late 1980s, a reform of the German citizenship legislation was considered necessary. The first step to foster the integration of foreigners with long-term residence was taken by some of the German federal states (Lander) by allowing aliens to participate in local government elections. In 1990, however, the Federal Constitutional Court declared this electoral legislation to be in conflict with Germany's constitution.12 The Court decided that aliens who are not German citizens are not entitled to vote. Since only German citizens belong to the people constituting the German nation, the right to vote depends on German citizenship. But the Court also stated that the legislator has the authority to determine the qualifications of naturalization, giving aliens the voting right in this way. Since the integration of long-term resident aliens was still considered a matter of concern, the naturalization of recruited migrant workers and the acquisition of German citizenship by young foreigners were facilitated in 1990.13 These regulations were based upon a consensus that the naturalization of immigrant workers and, in particular, of foreigners belonging to the second and the following generations, should be encouraged in order to foster their integration, especially since the exclusion of aliens with a permanent residence in Germany from participation in political life was still regarded to be undesirable. The Aliens Act's rules facilitating naturalization were changed in 1993 by granting a legal right to naturalization upon fulfillment of certain conditions,14 still including the renunciation of a former citizenship, even though many exceptions were defined for the acceptance of dual nationality.15 In recent years, the principle of avoidance of plural nationality has been increasingly called into question. In addition, the call for an introduction of the ius soli principle in German citizenship law had been raised, leading to several reform proposals which did not succeed. For example, in 1993 the Social Democratic Party presented a bill comprising a fundamental reform of the German nationality law.16 It provided for the acquisition of German citizenship by ius soli for aliens belonging to the third generation, a right to naturalization for foreigners of the second generation and for aliens with an eight-year residence in Germany, both under acceptance of dual nationality, and a right to naturalization for spouses of German citizens, also not dependent on the renunciation of their former nationality. The Federal Council supported this bill, emphasizing that turning away from the principle of avoidance of plural nationality would eliminate an obstacle to naturalization, leading
12 13 14 15 16
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BVerfG, Decision of 31.10.1990, BVerfGE 83, 37. Section 85 et seq. of the Aliens Act of 9.7.1990, BGB1. I, p. 1354. For details see supra II.B. Amendment of 30.6.1993, BGB1. I, p. 1062. Cf. section 87 of the Aliens Act 1990. For details see supra II.B. Bill of 10.3.1993, BT-Drs. 12/4553.
Comment: Development of Dual Nationality under German Law
to legal, political, and social equality of those aliens who immigrated to or were bom in Germany.17 In 1994, the Christian Democratic Party and the Liberal Party planned to establish a special nationality for children of the third generation (so-called Kinderstaatszugehorigkeit).18 According to this proposal, the "quasi-nationality" for foreign children born in Germany would have been granted if at least one parent had been born on German territory and if both parents had had their legal residence in Germany for ten years before the child's birth, both possessing an unlimited residence permit. The acquisition of this "quasi-nationality" would be established by the competent authorities at the request of both parents before the child attained the age of 12. As a result, the child would be entitled to the issuance of a German passport, and would have rights equal to those of German minors. At the age of 18 the child would acquire full German nationality after renouncing the original citizenship. If no renunciation occurred, the "quasi-nationality" would cease to exist within the course of one year after attaining majority. This proposal was never enacted. Among the various suggestions submitted during the following years,19 the proposal of the Liberal Party that an optional model be introduced is worth closer attention.20 It provided for the acquisition of German nationality by birth on German territory if at least one parent had permanent residence in Germany, and on condition that neither parent raised an objection. In order to avoid the emergence of dual nationality, the person concerned was obliged to opt for one of the two nationalities upon reaching the age of 21. Otherwise the German nationality would be lost. After the Social Democratic Party and the Green Party had won the federal parliamentary elections in September 1998, the new government presented a bill dealing with a new nationality law.21 In addition to introducing the acquisition of German nationality by ius soli, the bill was also characterized by abandonment of the principle of avoidance of plural nationality, thereby providing for the permission of dual nationality in general. When the Social Democrats lost the state election in Hessen a few weeks later, however, the Federal Government also lost its majority in the Federal Council (Bundesrat), which would have been required in order to pass the bill. Therefore, the Government withdrew its first proposal and replaced it by a bill that retained the principle of avoidance of dual nationality, conceding a
17 18
19 20
21
Resolution of 18.6.1993, BR-Drs. 403/93. Coalition agreement of CDU/CSU and FDP of 11.11.1994, printed in Fritz, Roland and Vormeier, Jurgen (Eds.), Gemeinschaftskommentar zum Staatsangehorigkeitsrecht (GK-StAR), 2000, Chapter III p. 26. See, e.g., the Resolution of the Social Democratic Party of 19.1.1995, BT-Drs. 13/259; Bill of the Green Party of 8.2.1995, BT-Drs. 13/423. Thesen des FDP-Bundesvorstands vom 5.2.1996, fdk Sonderausgabe vom 9.2.1996. On the optional model in general, see the report by the German Parliament's "Wissenschaftliche Dienste" of 11.6.1996, WF III-113/96. Of 13.1.1999, summary in ZAR 1999, p. 50 and 95.
339
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number of exceptions in certain cases.22 In addition, the bill provided for the introduction of the ius soli principle and the so-called optional model in order to avoid a permanent existence of plural nationality. On January 1, 2000, the new German Nationality Law (StAG) became effective.23
IV. THE ESSENTIAL FEATURES OF THE REFORMED NATIONALITY LEGISLATION IN GERMANY The basic amendments of the Citizenship Reform Act can be summarized as follows: One of the major innovations consists in introducing the acquisition of German citizenship by ius soli, in addition to the principle of ius sanguinis which remains effective as before. Under section 4 para. 3 of the Nationality Act, a child of foreign parents acquires German citizenship by birth on German territory if one parent has legally had his or her habitual residence in Germany for eight years and if he or she possesses an entitlement to reside (Aufenthaltsberechtigung 24 ) or an unlimited residence permit (Aufenthaltserlaubnis 25 ) for three years. A foreign child who has his or her legal residence in Germany and who on January 1, 2000 had not reached the age of ten has a right to naturalization if he or she met the above-mentioned conditions at the time of birth (section 40b of the Nationality Act). In contrast to the first draft presented by the Ministry of the Interior,26 the new citizenship law does not accept double and multiple nationality on a regular basis. Nevertheless, because foreign children usually receive their parents' nationality by descent, it was expected that the adoption of the ius soli principle would lead to an increase of dual nationality in Germany.27 As a political compromise, the so-called "optional model" was introduced in order to restrict increasing dual nationality to a limited period of time. Therefore, section 29 of the Nationality Act provides for a duty to decide when attaining majority which nationality to keep and which to renounce. This means in detail: under section 29 para. 1 of the Nationality Act, dual nationals who acquired the German citizenship by ius soli (section 4 para. 3 or section 40b of the Nationality Act, respectively) must declare at the age of 18 which of both nationalities they want to keep. If they intend to keep the foreign nationality or if no declaration is made before the age of 23, the German citizenship is lost by law. On the other hand, if they declare that they want to keep the German citizenship, the young adult is obliged to prove loss or renunciation of the foreign nationality (section 29 para. 2 of the Nationality Act). If this proof is not produced until the 22 23 24 25 26 27
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Of 16.3.1999, BT-Drs. 14/533; see for the Bill of the Christian Democratic Party and the Liberal Party of 16.3.1999 ("Staatsangehorigkeitsneuregelungsgesetz") BT-Drs. 14/535. Article 5 of the Amendment of 16.3.1999, BT-Drs. 13/533. Cf. section 27 of the Aliens Act. Cf. section 24 of the Aliens Act; for European Union citizens see section 7a AufenthaltsG/EWG, respectively. See footnote 21. Explanations to the Bill of 16.3.1999, BT-Drs. 14/533, Chapter II. Article 1, No. 8 (section 29 StAG).
Comment: Development of Dual Nationality under German Law
age of 23, the German citizenship is lost unless the authorities issue the permission to retain the former nationality (so-called "Beibehaltungsgenehmigung," see section 29 para. 3 of the Nationality Act). This permission is to be granted if renunciation or loss of the foreign nationality is impossible or unreasonable or if, in the case of naturalization, dual nationality would be accepted under section 87 of the Aliens Act. As far as the acceptance of dual nationality is concerned, any naturalization as well as the option to retain the German citizenship received by birth is based upon the condition that the applicants renounce their original citizenship. In other words, the principle of avoidance of plural nationality is retained, but the exceptions for hardship cases were slightly extended and put in more precise terms. In particular, the following three exceptions were added: - Release from the original citizenship depends on unreasonable conditions, e.g., unreasonably high fees or degrading procedures in the state of origin. - Release from the original citizenship causes considerable economic or financial disadvantages for the applicant. - Victims of political persecution and recognized refugees do not have to make any efforts to achieve release from the original citizenship. Besides the introduction of the ius soli principle, the naturalization of aliens with long-term residence in Germany was facilitated.28 Foreigners now have a claim to naturalization after having been a resident for 8 years instead of 15 years as before. However, the applicant still has to have a secure income and no criminal convictions. On the other hand, the pre-conditions were tightened: under the new law the applicants must profess acceptance of the principles of the German Constitution,29 and they must have a sufficient knowledge of the German language.30 Naturalization of extremist aliens is excluded by a new protective clause.31 In order to limit dual nationality, some amendments concerning the loss of German citizenship have been adopted. The first one deals with the case in which a German citizen applies for the acquisition of a foreign nationality. Whereas according to the former legal situation the German citizenship was lost only when the citizen did not have a domicile or a habitual residence on German territory (cf. section 25 para. 1 RuStAG), under the new law the loss of German citizenship also occurs when their center of living still remains in Germany (cf. section 25 para. 1 StAG). This regulation was adopted to end the former practice of evading this regulation by reacquiring the former citizenship immediately after formally renouncing.32 Second, acquisition of German citizenship by descent is now excluded when the child is born abroad if 28 29 30 31 32
Cf. section 85 para. 1 of the Aliens Act. Section 85 para. 1 No. 1 of the Aliens Act. Section 86 para. 1 No. 1 of the Aliens Act. Section 86 para. 1 No. 2 of the Aliens Act. Explanations to the Bill of 16.3.1999, BT-Drs. 14/533, Chapter II. Article 1, No. 7 (section 25 StAG). For details, see Kreuzer, Double and Multiple Nationality in Germany after the Citizenship Reform Act of 1999, this volume. 341
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the German parent who does not have his or her habitual residence in Germany was born abroad later than December 31, 1999, unless the child would suffer from statelessness (section 4 para. 4(1) StAG).33
V. CONSTITUTIONAL AND PRACTICAL ASPECTS OF THE NEW GERMAN NATIONALITY LAW A. Constitutionality of the ius soli System under the Nationality Act The introduction of ius soli in German nationality law was a controversially discussed part of the reform legislation.34 Some opponents raised objections concerning the principle of democracy as well as the understanding of the German nation under the German Basic Law. Others held the opinion that the acquisition of German citizenship by birth on German territory was excluded due to general principles laid down in the German Constitution, and that the principle of mono-nationality was established in the German Basic Law as well.35 Therefore, according to these views the legislator should be bound to the ius sanguinis principle on constitutional grounds.36 In this context the Federal Constitutional Court's decision of May 21, 197437 was frequently cited. The Court stated there that both on an internal and international level the existence of double or multiple nationality is regarded as an "evil" which, if possible, should be avoided or eliminated in the interests of the states as well as in the interests of the persons affected.38 This decision, however, provides only a description of the legal situation under public international law at that time.39 The Court also emphasized that the legislator under certain circumstances was even obliged to accept double and multiple nationality on constitutional grounds.40 However, the above-mentioned decision of the Federal Constitutional Court did not consider the question of whether the ius sanguinis principle was established in the German Constitution. In consequence, it is scarcely of importance for this subject.41 In particular, the Court did not raise any constitutional objections against 33
34
35 36 37 38 39 40
41
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Exception: announcement of birth to the competent authorities, cf. section 4 para. 4(2) of the Nationality Act. See for the reform in general Gobel-Zimmermann/Masuch, DOV 2000, p. 95; Hailbronner, NVwZ 1999, p. 1273; Huber/Butzke, NJW 1999, p. 2769; v. Mangoldt, ZAR 1999, p. 223; Renner, NJ 2000, p. 15; Renner, ZAR 1999, p. 154; Scholz/Uhle, NJW 1999, p. 1510; Weber, DVB1. 2000, p. 369. For practical aspects of the application of the ius soli rules, see Bornhofen, StAZ 1999, p. 257. Scholz/Uhle, NJW 1999, p. 1510 et seq.; Huber/Butzke, NJW 1999, p. 2769, 2771. Scholz/Uhle, NJW 1999, p. 1510 et seq. BVerfG, Decision of 21.5.1974, BVerfGE 37, 217. BVerfGE 37, 217, 254. Hailbronner, NVwZ 1999, p. 1273, 1277. The decision dealt with the aquisition by descent of multiple citizenship in cases of mixed-national marriages. Gobel-Zimmermann/Masuch, DOV 2000, p. 95, 99.
Comment: Development of Dual Nationality under German Law
the acquisition of German citizenship by ius soli.42 The Court stressed that, in view of the nationality law's fundamental significance, the legislator does not have unlimited freedom of decision-making on these issues. Instead, nationality legislation rather must take into account the basic principles laid down in the German Constitution, especially expressed in the basic rights, and contribute to their implementation.43 One may deduce from these remarks that German citizenship must not be granted to persons who are not adequately connected to the Federal Republic of Germany. This close connection, however, can be assumed when fulfilling conventional integration requirements, such as long-term residence and birth or education in Germany.44 Compliance with these principles is given in case of acquisition of German citizenship by ius soli which is connected not only with birth on German territory, but also with permanent residence of the child's parents possessing a residence permit. B. Constitutionality of the Optional Model under the Nationality Act The introduction of the optional model (section 29 of the Nationality Act) was a highly controversial part of the citizenship legislation reform. Some opponents argued that these rules might be inadmissible under German constitutional law. Under Article 16 para. 1(1) of the German Basic Law, German citizenship must not be withdrawn. According to Article 16 para. 1(2) of the German Basic Law, the loss of citizenship may occur only on the basis of a law, and against the will of the person affected only if the loss does not lead to statelessness. The Federal Constitutional Court distinguishes between these terms as follows.45 Withdrawal of citizenship occurs as a result of an act which is solely founded on the state's intention to take away German citizenship. To put it another way, withdrawal is the loss of citizenship which the person affected cannot influence at all, whereas the loss of citizenship, in contrast to withdrawal, is based on a willful and deliberate action he or she is responsible for. In other words, keeping German citizenship is in his or her own hands.46 While elaborating the reform of the nationality law, the legislator had to take into account these principles as far as the optional model is concerned. Because a young adult who acquired German citizenship by ius soli may be unable to renounce his or her original citizenship under certain circumstances, it was necessary to provide for exceptions in order to ensure the optional model's compatibility with Article 16 of the German Basic Law.47 Therefore, young adults have a right to permission to retain their former nationality if its renunciation or loss is impossible or unreasonable or if, in the case of naturalization, dual nationality would be accepted under section 87 42 43 44 45 46 47
Hailbronner, NVwZ 1999, p. 1273, 1276. BVerfG, Decision of 21.5.1974, BVerfGE 37, 217, 239. Hailbronner, ZAR 1999, p. 51, 53 m.w.N. BVerfG, Decision of 22.6.1990, NJW 1990, p. 2193. Ibid. Explanations to the Bill of 16.3.1999, BT-Drs. 14/533, Chapter II. Article 1, No. 8 (section 29 StAG).
343
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of the Aliens Act (so-called "Beibehaltungsgenehmigung," see section 29 para. 3 and 4 of the Nationality Act).48 Applying these regulations, section 29 of the Nationality Act does not impose an inadmissible withdrawal, but instead provides for a constitutional loss of citizenship.49 In addition, the optional model's compatibility with the principle of equality under Article 3 of the German Basic Law was under debate. Is it not an inadmissible discrimination if a young adult who acquired German citizenship by ius soli is obliged to opt for one of two nationalities when attaining majority while a dual national who acquired German citizenship by ius sanguinis does not need to fulfill such an obligation, but instead is allowed to keep the foreign nationality as well? The justification consists in the fact that the extent of integration must be assessed in a different manner. If a child acquires German citizenship by descent, a certain connection with the German state exists already as a result of the family community, whereas the acquisition of citizenship merely by birth on German territory does not lead to such a closeness to the German nation. This difference in expected integration justifies limiting the optional model's rules to children acquiring German citizenship by ius soli. In consequence, these regulations are compatible with the principle of equality under Article 3 of the German Basic Law.50 C. Practicability of the Reformed Nationality Regulations Finally, objections were raised regarding the optional model's practicability. It can be assumed that young adults who acquired German citizenship by ius soli frequently will declare their intention to keep the German nationality but will not prove effective renunciation of their former citizenship within the legal period of time.51 Because many exceptions allowing permission for plural nationality are provided for in the new nationality law, it is by no means impossible that maintaining the foreign citizenship will become common practice.52 Besides the considerable administrative expenditure for reviewing each individual case, whether permission to retain the foreign citizenship may be granted is an issue of major concern.53
VI. CONCLUSION AND OUTLOOK The reform of the German citizenship legislation has been a necessary step to bring the German nationality law in line with evolving modern conditions. The supporters 48 49
50
51 52 53
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See supra III. Approving of the constitutionality with regard to Article 16 of the German Basic Law also GobelZimmermann/Masuch, DOV 2000, p. 95, 98; Hailbronner, NVwZ 1999, p. 1273, 1277; Weber, DVB1. 2000, p. 369, 372. Approving of the constitutionality with regard to Article 3 of the German Basic Law also GobelZimmermannl/Masuch, DOV 2000, p. 95, 101; Hailbronner, NVwZ 1999, p. 1273, 1278; v. Mangoldt, ZAR 1999, p. 250. Cf. Hailbronner, NVwZ 1999, p. 1273, 1279 et seq. Ibid. Cf. Gobel-Zimmermann/Masuch, DOV 2000, p. 95, 102; Renner, NJ 1999, p. 230, 234.
Comment: Development of Dual Nationality under German Law
of the new regulations argue that they will contribute to the integration of aliens and avoid their isolation in society. Besides, the development of legislation in most of the other Western European states shows a tendency toward increased acceptance of dual nationality. However, the new German Nationality Act will be the first, but not the last stage of a reform process. It will undoubtedly have to be supplemented by further regulations in particular with regard to the loss of German citizenship. For example, transmitting German nationality to the following generations who do not have any connections or links to Germany should be excluded.54 Because children will acquire German citizenship by descent even if their parents became German nationals by ius soli, the optional model's rules are not applicable in these cases, with the result that those young adults will not be obliged to decide which nationality to keep. In this context it seems to be important that further rules on loss of German citizenship will have to take into account the above-mentioned constitutional aspects as well.
54
Section 4 para. 4 of the Nationality Act merely concerns citizenship acquisition by ius sanguinis. 345
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CHAPTER 10 COMMENT
DOUBLE AND MULTIPLE NATIONALITY IN GERMANY AFTER THE CITIZENSHIP REFORM ACT OF 1999
Christine Kreuzer
I. INTRODUCTION During the last decades the attitude in Germany towards dual and multiple nationality has changed fundamentally. The principle of avoidance of dual nationality is still to be found in section 9 of the Nationality Act (Staatsangehorigkeitsgesetz/StAG) and section 85 of the Aliens Act (Auslandergesetz/AuslG), as well as in no. 8.1.2.6 of the Federal Administrative Provision, which governs inter alia, naturalizations. But current practice already leads to the acceptance of dual nationality in almost two thirds of all naturalizations. This reality is now also reflected in section 87 of the Aliens Act as amended by the Citizenship Reform Act of 19991 and the Federal Administrative Provision which entered into force at the beginning of 2001.2 The question is whether these amended provisions will lead to an increasing acceptance of dual or multiple nationality. Before introduction of the ius soli principle by the Citizenship Reform Act of 1999, German citizenship had been acquired by descent, by legitimization, by adoption, or by naturalization. Acquisition by naturalization for foreigners living in Germany depended and still depends, according to section 8 of the Nationality Act (StAG), 1
2
Gesetz zur Reform des Staatsangehorigkeitsrechts vom 15.7.1999, BGB1. 1999 I, p. 1618. Cf. as to the Citizenship Reform Act Barwig/Hailbronner/Huber/Kreuzer/Lorcher/Schumacher (eds.), Neue Regierung - neue Auslanderpolitik?, Baden-Baden 1999; Gobel-Zimmermann/Masuch, DOV 2000, p. 95; Hailbronner, NVwZ 1999, p. 1272; Huber/Butzke, NJW 1999, p. 2769; v. Mangoldt, ZAR 1999, p. 243; Renner, ZAR 1999, p. 154 and NJ 2000, p. 15; Scholz, DRiZ 1999, p. 175; Scholz/Uhle, NJW 1999, p. 1510; Wiedemann, Development of Dual Nationality under German Law, para. IV et seq. Allgemeine Verwaltungsvorschrift zum Staatsangehorigkeitsrecht (StAR-VwV) vom 13. Dezember 2000, Bundesanzeiger Nr. 21 a of 31.1.2001.
David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 347-359 © 2003 Kluwer Law International. Printed in Great Britain.
C. Kreuzer
upon the fulfillment of certain minimum requirements, notably the absence of criminal prosecution, the possibility to make a living, and adequate accommodation. If these requirements are fulfilled, the authorities have wide discretion over whether to grant naturalization. Administrative decisions had been determined by binding administrative guidelines enacted by the Federal Ministry of the Interior adopted in cooperation with the interior ministers of the Lander.3 According to the Administrative Guidelines in force under the prior law, the applicant had to present sufficient evidence of legal residence in Germany for at least ten years. In addition, an attachment to Germany was required as well as certain knowledge of the German language, and a finding that the candidate for naturalization was not opposed to the ideas inherent in the Basic Law of the Federal Republic of Germany. The requirement to give up a former nationality was not a binding requirement with respect to section 8 of the Nationality Act (in contrast to section 9),4 but was laid down in no. 5.3.1 of the Administrative Guidelines as a reflection of the general requirement of proof of attachment to the German living conditions and its legal and social order. Dual nationality had always been considered as being inconsistent with the concept of loyalty and attachment to Germany: The principle of avoidance of multiple nationality, which characterizes German naturalization law, is founded on the recognition that multiple nationality is in principle not in the interest of the state and the citizen. It leads to a conflict of duties under different legal orders and establishes a danger of legal uncertainty. On the other hand, the possible accumulation of rights in certain areas can lead to an unjustified privileging of the multiple national. Diplomatic and consular protection abroad is restricted. The acquisition of German nationality on condition of loss of prior nationality is also preferable to multiple nationality on grounds of integration policy. These considerations have also led to the Council of Europe Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality of May 6, 1963 ... to which the Federal Republic of Germany has acceded.5 The principle of avoidance of multiple nationality then was confirmed by the Federal Constitutional Court, recognizing that multiple nationality can lead to 3
4
5
348
Einbiirgerungsrichtlinien of 1.7.1977; see Hailbronner/Renner, StAngR, Staatsangehorigkeitsrecht, 2nd edition, 1998, p. 863 et seq.; the draft for the new Federal Administrative Provision for nationality issues has already been submitted early in 1999; after several amendments before and the latest sixty amendments by the Second Chamber (Bundesrat) the final version of the Allgemeine Verwaltungsvorschrift zum Staatsangehorigkeitsrecht (StAR-VwV) of 13 December 2000 entered into force on 1 February 2001. Spouses of German nationals have a right to naturalization provided that they renounce their previous nationality and fulfill certain requirements of integration into German living conditions. As to the naturalization on a discretionary basis after the Citizenship Reform Act, cf. Horn/Sauerland, StAZ 2000, p. 317. Response of the Federal Government to a Parliamentary Inquiry on Naturalization Policy, BT-Drs. 12/2035(1992).
Comment: Double and Multiple Nationality in Germany after 1999
loyalty conflicts and insecurity concerning diplomatic protection. The following passage of its decision became famous as for the doctrine that multiple nationality is an evil to be avoided ("Ubel-Doktrin"): It is accurate to say that dual or multiple nationality is regarded, both domestically and internationally, as an evil that should be avoided or eliminated if possible in the interest of states as well as in the interest of the affected citizen: most international conventions in the field of nationality concern this subject or at least attempt to ameliorate the difficulties that arise out of the possession of several nationalities... States seek to achieve exclusivity of their respective nationalities in order to set clear boundaries for their sovereignty over persons...; they want to be secure in the duty of loyalty of their citizens - which extends if necessary as far as risking one's life - and do not want to see it endangered by possible conflicts with a loyalty owed to a foreign state. Accordingly, the duty of military service provides the principal reason for avoiding dual nationality. Conflicts between the two countries of nationality can also arise from such inconsistent duties and from competitive assertions of diplomatic protection, agencies and courts of third states face the problem of deciding which of the two nationalities they should give priority.6 In the context of the general debate and due to the factual changes as to the increasing number of foreigners living in Germany, it was decided in 1990 to facilitate the acquisition of German citizenship for young foreigners between the ages of 16 and 23, provided that they renounced their previous nationality, had lived permanently and lawfully in Germany for eight years, had attended school in Germany for at least six years, and had not been prosecuted for a criminal offense. In addition, the acquisition of German citizenship for the first generation of recruited migrant workers was facilitated by giving a right to acquisition of German citizenship, provided that there was a renunciation of previous nationality, absence of criminal conviction, and the capability to earn a living. By a further amendment in December 1993, these rules were changed by establishing an individual right entitling every foreigner fulfilling the requirements to demand naturalization. These provisions entailed a major shift, since the main provisions for naturalization were now to be found in the Aliens Act. Although the provisions of the Aliens Act granting entitlement to German citizenship still provided for a renunciation of the previous nationality, a number of exceptions were made which led in fact to a steadily increasing number of naturalizations with acceptance of dual nationality. Exceptions were granted, for instance, if a foreigner could not renounce his previous nationality or could do so only under particularly difficult conditions, for instance if the home country required military service before giving up nationality. 7 Figures show that not only has the number of 6 7
Judgment of May 2, 1974, BVerfGE 37, 217, 254. Section 87 of the Aliens Act allowed dual nationality under the following conditions: (1) the prior country affords no legal avenue for release from the nationality or regularly denies requests following 349
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naturalizations increased substantially during the last years, but that in almost twothirds of all naturalizations, dual nationality has been accepted. Thus, in 21.9 percent of all naturalizations effected in 1997 according to discretionary provisions and under sections 85 and 86 of the Aliens Act, double or multiple nationality has been accepted. Statistics even show that, for nationals of some states, the acceptance of dual nationality was almost the rule. Figures demonstrate furthermore that in 89.9 percent of all naturalizations of nationals from Morocco, 82.3 percent of cases from Tunisia, and 63.0 percent from the Federal Republic of Yugoslavia, dual nationality was accepted. The same applied for 82.7 percent of persons from Afghanistan, 88.5 percent from Eritrea, 83.3 percent from Lebanon, 74.8 percent from BosniaHerzegovina, 90.1 percent from Iran, 76 percent from Syria, and 89.2 percent from Greece. This tendency to accept dual and multiple nationality in a wider range of cases and under defined circumstances was even stronger when considering naturalizations on the grounds of sections 85 and 86 of the Aliens Act.8 When the latest debate on the reform of the German nationality law began, broader acceptance of dual nationality had a high priority on the political agenda.9 Therefore, in the first draft submitted in January 1999, the principle of avoidance of dual nationality and the requirement to give up a former nationality upon naturalization did not appear at all. At a later stage, however, after several elections in the Lander changed political alignments, the approach changed. The possibility of accepting a temporally limited dual nationality as well as a broader acceptance of dual nationality in an increasing number of cases was introduced. But the central element of the reform was the introduction of the ius soli principle within German law (section 4 of the Nationality Act) and the duty of the young adult to decide upon the age of majority in favor of one of the two nationalities (optional model).10 Further amendments relate to facilitating naturalizations. Only eight years of lawful stay in Germany are required. The applicant has to accept the free and democratic legal order in Germany ("freiheitlich demokratische Grundordnung") and must present a special resident entitlement in the form of an "Aufenthaltserlaubnis" or "Aufenthaltsberechtigung." The applicant has to be able to make a living or adequate accommodation without being dependent on public assistance, but an exception from this requirement is made in cases in which the applicant is not liable for the
8
9
10
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that purpose, or (2) the conditions for renunciation of a prior nationality are disproportionate or arbitrary, or (3) the ensuing delays are unreasonably burdensome, or (4) a precondition for renouncing the prior nationality lies in the performance of military service in the relevant country and the person requesting naturalization has grown up in Germany. As to the statistics, cf. Beauftragte der Bundesregierung fur Auslanderfragen (Government Commissioner for Issues Concerning Foreign Nationals in Germany), Daten und Fakten zur Auslandersituation, 18th ed. June 1999, p. 32. Cf. as to the reform of the German nationality law Gnielinski, Die Reform des deutschen Staatsangehorigkeitsrechts, Frankfurt am Main 1999; Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, Einl. F, para. 59 et seq.; Wiedemann, Development of Dual Nationality under German Law, para. III. et seq. Section 29 of the Nationality Act.
Comment: Double and Multiple Nationality in Germany after 1999
dependency on public means. There must be an absence of criminal convictions and the applicant has - in principle - to give up his prior nationality and to present sufficient knowledge of the German language. Further amendments were made providing for the loss of nationality for those nationals living abroad, if one parent has been born abroad after 31 December 1999 and no registration took place, provided that this would not lead to the statelessness of the person in question (section 29 of the Nationality Act). A further amendment relates to section 25 of the Nationality Act.11
II. THE ACCEPTANCE OF DUAL NATIONALITY IN SECTION 87 OF THE ALIENS ACT The first question which arises when taking a closer look at section 87 of the Aliens Act is whether this provision names all the exceptions from the principle of avoidance of dual nationality and whether the field of application is thus confined to those cases. The alternative view is that section 87 merely refers to some examples, implying that the field of application might be broader and a further application might be possible under similar circumstances, section 87 provides: The requirement set out in section 85 subsection 1 no. 4 shall be dispensed with where the foreigner cannot give up his previous citizenship or can only do so under particularly difficult conditions. This shall be presumed where ... The wording of this provision itself does not limit the field of application to the examples mentioned in this section. On the other hand, no such word as "especially" has been introduced. The legislative materials to this law mostly support the notion that section 87 comprises an exhaustive listing of cases in which dual nationality should be accepted.12 In the discussion of section 87 before the enactment of the Citizenship Reform Act, most supported the view that the four exceptions mentioned in section 87 comprised an exhaustive listing of all cases in which dual nationality should be accepted.13 Taking into account that the amended provision now consists of five paragraphs instead of the previous three and that in para. 1, six exceptions instead of four are now mentioned, one would be inclined to favor assuming a limited field of application. This view is supported by the fact that the draft materials used in the legislative procedure mention the word "comprehensive," and that both drafts as well as the final version of the Federal Administrative Provision state 11
12 13
See III. Cf. as to the discussion of this major reform and issues of constitutionality, Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, Einl. E, para. 73 et seq.; Wiedemann, Development of Dual Nationality under German Law, para. V. BT-Drs. 14/533, p. 19. Cf. as to this discussion, Hailbronner/Renner, StAngR, Staatsangehorigkeitsrecht, Kommentar, 3rd edition 2001, § 87 AuslG, para. 4 et seq.; Administrative Court of Appeal of Nordrhein-Westfalen, InfAuslR 1998, p. 186; Administrative Court of Appeal of Baden-Wurttemberg, InfAuslR 1922, p. 98. 351
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explicitly that no further exceptions should be allowed.14 The practice in the federal states (Bundesldnder), however, has been different. Accordingly, prior to January 1, 2000, dual nationality was accepted in four additional cases, e.g., if it was generally impossible to renounce one's citizenship, but such restrictions applied with special severity to certain professional groups, such as physicians coming from Iran, and when renunciation of the original nationality would have led to considerable disadvantages for relatives still living in the home country, inter alia in cases in which state practice required the whole family to renounce the prior nationality (e.g., Iran). When drafting the new section 87, it was not taken into consideration that there might be legal obstacles for the applicant when renouncing his or her previous citizenship. For example, the Citizenship Law of the Federal Republic of Yugoslavia provides for a special fee which has to be paid before release from Yugoslav citizenship. But a naturalization applicant who, because of sanctions that have been implemented against the Federal Republic of Yugoslavia, transfers this money would violate the German Law on Foreign Trade and Payments (AuBenhandelswirtschaftsgesetz), according to the view of the German Commission on Issues Concerning Foreign Nationals in Germany. Courts therefore have suspended all actions in similar cases. In addition, there were different opinions as to the field of application of Article 2 of the Final Protocol of the Iranian-German Settlement Convention with respect to the naturalization of spouses and minor children. The first two cases in which naturalizations should take place while accepting dual or multiple nationality are identical to the previously existing legal situation. According to section 87 para. 1, dual nationality is accepted in cases in which the law of the foreign state does not make provisions for giving up its citizenship.15 Taking into account that under general international law and Article 15 para. 2 of the Universal Declaration of Human Rights everyone has the right to change his or her nationality, this provision has not been and still will not be of overwhelming importance. Therefore, the draft for the Federal Administrative Provision to implement the law provided that this regulation should also apply in cases in which there are special requirements regarding the applicant's age before the latter can be released from the former nationality.16 But some of the federal states did not accept this broader application when debating this proposal within the Second Chamber 14
15
16
352
Cf. no. 87.0 of the September Draft and no. 87.1.1.of the December Draft and the enacted version of the Federal Administrative Provision: "Satz 1 enthalt eine allgemeine Regelung fur die Hinnahme von Mehrstaatigkeit, die durch die nachfolgend in Satz 2 genannten Falle konkretisiert wird. Dieser zahlt - neben der in Absatz 2 genannten Ausnahme - abschlieBend die Fallgruppen auf, in denen eine Einbiirgerung oder Miteinbiirgerung nach § 85 unter Hinnahme von Mehrstaatigkeit vorzunehmen ist". Cf. no. 5.3.3.1 of the Administrative Guidelines that were governing naturalizations before on the basis of section 8 of the Nationality Act to the legal impossibility to give up the former nationality, see Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition, 2001, section 87 Aliens Act, para. 10. Cf. no. 87.1.2.1. of the Draft of Federal Administrative Provision of December 1999.
Comment: Double and Multiple Nationality in Germany after 1999
(Bundesrat).17 Therefore, this proposal exception is now not to be found in the final version of the Federal Administrative Provision of December 2000. Section 87 para. 1 no. 2 is identical to an exception in prior law and reflects elements of no. 5.3.3.2 of the Administrative Guidelines of 1977. According to this provision, dual nationality is accepted in cases in which the foreign state regularly refuses release and the foreigner has given the competent authority an application for release for forwarding to the foreign state.18 As to this factual impossibility, the draft of the Federal Administrative Provision as well as the final version describe "regular" cases in which release is never or almost never granted.19 Examples of this practice, which were still to be found in the September version,20 were already deleted when submitting the final draft in December 1999. Furthermore, the case of Iran not allowing renunciation of the previous nationality in certain cases, e.g., for persons in health care professions, does not appear in the final version.21 Exception no. 3 in section 87 is partly identical to the former provision, but also has been slightly amended.22 Acceptance of dual nationality is thus possible if one of the following three cases applies: - the foreign state has refused release from citizenship for reasons beyond the control of the foreigner, or - the foreign state has attached unreasonable conditions to it, or - the foreign state has not decided on a complete and formally correct application for release within an appropriate period of time. Before the enactment of the Citizenship Reform Act, dual nationality was to be accepted if the denial of release was arbitrary;23 today it is sufficient that the applicant is not responsible for the reasons justifying the denial of any release. As to the application of this exception, it is stated in no. 87.1.2.3.1 para. 2 of the Federal Administrative Provision that a denial of release might be presumed if during a period of six months and despite reasonable efforts by the individuals, it has not been possible to submit any application for such a release. As to the liability of the applicant, the same provision clarifies that the applicant is to be responsible for any breach of duties towards his home country (e.g., repayment of any scholarship or 17
18 19 20 21 22 23
Cf., e.g., the Preliminary Administrative Provision in Baden-Wiirttemberg of 28 December 1999, which explicitly states that this exception should not be applicable to persons who have not yet reached the required age to be released from the nationality of their home country. Cf. as to the factual impossibility to give up the former nationality Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, section 87 Aliens Act, para. 11. No. 87.1.1.2.2. No. 87.1.2.2 referring to some Arab and North African countries, especially Algeria, Morocco, Syria, and Tunisia. Cf. to the Iranian practice, Hailbronner/Renner, Staatsangehorigkeitsrecht, 2nd edition, 1998, p. 347; Administrative Court of Braunschweig, InfAuslR 1995, 200. See also Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, section 87 Aliens Act, para. 13. Cf. also no. 5.3.3.2 of the Administrative Guidelines of 1977.
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grant, non-payment of taxes)24 or towards other persons (e.g., a maintenance claim towards spouses, children, or other relatives); the same applies if the application form for the release is not filed properly. The September 1999 draft of the Administrative Provision stated that the applicant is not obliged to sue for release or against the denial of release from citizenship, but this passage was not incorporated in the final version. Dual nationality is furthermore accepted under section 87 if the release is linked to unreasonable conditions.25 Those conditions might be of a pecuniary nature, an exception that had already been accepted under former provisions, although a concrete sum had not been mentioned. In the final version of the Federal Administrative Provision, a sum (including all fees related to the release), which was higher than the monthly average gross income of the applicant and was supposed to amount to a sum of at least DM 2,500, is explicitly mentioned.26 This was in contrast to the September draft in which these two conditions were not linked by an "and," but were seen to be alternative requirements. In addition, any possibility to reduce the sum of the average income of the applicant by deducting maintenance claims has been deleted.27 The second group in which the demand for release is linked to unreasonable conditions in the September draft of the Federal Administrative Provision was intended to reflect the existing case law under the former section 87 of the Aliens Act, according to which a demand for release was not necessary if this implied any danger for the life, health, or liberty of the applicant himself or a close relative.28 This provision is not to be found in the final version as enacted in 2001. Another provision of the September draft was dropped. It would have excused presentation of a demand for release if the applicant was obliged to present himself or herself in accordance with special traditional clothing, e.g., wearing a chador, an exception which already has been under discussion under the prior provisions. In addition, all cases relating to the obligation to perform a military service in the home country may, as long as the conditions named in para. 3 are not fulfilled, constitute a hardship for the applicant.29 According to no. 87.1.2.3.2.2 of the Federal Administrative Provision, the requirement of performing military service would fall within the scope of application of section 87 of the Aliens Act, thereby excusing release from the other nationality: 24
25 26 27 28
29
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A similar provision existed in no. 5.3.3 of the Administrative Guidelines of 1977 ("general obligations and obligations under particular circumstances"); cf. as to the case-law and practice in the different federal states Hailbronner/Rentier, Staatsangehorigkeitsrecht, 2nd edition, p. 345. Cf. Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, section 87 Aliens Act, para. 16. No. 87.1.2.3.2.1 of the Federal Administrative Provision. Cf. no. 87.1.2.3.2 of the September Draft of the Federal Administrative Provision. Cf. no. 87.1.2.3.2.1. of the December Draft as well as the amended version which passed the Second Chamber (Bundesrat), BR-Drs. 749/99, and - as to the practice before the Citizenship Reform Act Hailbronner/Renner, Staatsangehorigkeitsrecht, 2nd edition, p. 543. Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, section 87 Aliens Act, para. 19.
Comment: Double and Multiple Nationality in Germany after 1999
- if the applicant is more than 40 years old and has been living abroad for more than 15 years and for more than ten years in Germany; - the possibility exists that the applicant may be involved in a military conflict with Germany or another allied state; - the compliance with the duty to perform military service would imply that the applicant, living together with his spouse and children, had to take his permanent residence in the home country for at least two years; or - if for reasons of conscience he prefers not to perform any military service and the home country does not offer any possibility or substitute for performing military service. Since some countries offer the possibility to pay for non-compliance with the duty to perform military service, the Federal Administrative Provision states that any payment above the triple (instead of the double, as mentioned in the December draft of 1999) of the average income of the applicant per month or any sum exceeding DM 10,000 would be unreasonable. As to the waiting period for release from the former nationality, no. 87.1.2.3.3 states that dual nationality is to be accepted if the home country has not decided on the issue within a period of two years after the submission of the proper application30 and no decision is to be expected during the next six months. Guidelines relating to release procedures consisting of two stages,31 which had formed part of the September draft, no longer appear in the final version. According to section 87 para. 1 no. 4, dual nationality might be accepted with regard to elderly persons if "the naturalization of older persons is barred by the sole obstacle of resulting multiple nationality, release is meeting with disproportionate difficulties and refusal of naturalization would create a particular hardship."32 According to no. 87.1.2.4 of the Federal Administrative Provision, this applies for applicants at least 60 years of age under one of three further conditions: where health problems substantially impede the applicant when applying for the release from the former nationality; where the whole procedure would require unreasonable travel to the home country or where it is not possible, or only possible under an unreasonable expenditure, to state which nationality the applicant possesses. Further provisions reducing the time limit in the previous paragraph to one year and referring to the unity of family or the length of residence in Germany were not incorporated in the latest draft of December 1999, but because of amendments within the Second 30
31
32
This absolute time limit is consistent with the view expressed in the literature; cf. for instance H ailbronner/Renner, Staatsangehorigkeitsrecht, 3d edition 2001, section 87 Aliens Act, para. 21, and Renner, section 87 Aliens Act, para. 2. At the first stage, the Iranian national would have to submit an application in his native language mentioning also the reason for his application for release from nationality; the competent authorities then would have to decide upon sending him the application form for proper release. This provision is similar to no. 5.3.3.4 of the Administrative Guidelines of 1977; see also Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, section 87 Aliens Act, para. 23.
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Chamber (Bundesrat), they do reappear in the final version enacted in 2001. According to no. 87.1.2.4 lit. c of the Federal Administrative Provision, resembling a similar provision in the Preliminary Administrative Provision of BadenWiirttemberg, the fact that all family members living in Germany already have acquired German citizenship or that the applicant has been living legally in Germany for at least 15 years may constitute a particular hardship. Another new exception to the principle of avoiding dual nationality is made when "giving up the foreign citizenship would bring considerable disadvantages to the foreigner, in particular of an economic or financial kind, beyond the loss of his rights as a citizen." The wording of this provision as well as the comment in no. 87.1.2.5 of the Federal Administrative Provision reflect at least partly the experiences Turkish nationals had suffered some years ago.33 Nevertheless, the Federal Administrative Court had pointed to the advantages which German nationality may entail and therefore denied any exception as to dual nationality on these grounds. According to no. 87.1.2.5.1 of the Federal Administrative Provision, such unreasonable disadvantages may be assessed under individual circumstances and the concrete situation. In addition, some examples for such unreasonable disadvantages are mentioned in the provision: - The loss of the prior nationality is linked to restrictions as to inheritance; - The applicant must, after the release, transfer all immovable property to other persons without adequate compensation or sell all property greatly below value; - The loss of the former nationality would entail a loss of pension or all expectancies; - The loss of the former nationality would lead to an endangerment of the person's commercial relations in former state of nationality. According to no. 87.1.5.2 of the Federal Administrative Provision, such disadvantages could be regarded as unreasonable only if they exceed the usual gross income of the applicant per year and an amount at least to a sum of DM 20,000. According to no. 6 of the aforementioned provision, dual nationality is allowed if the applicant is politically persecuted within the meaning of section 51 of the Aliens Act, or if he or she is being treated like a refugee under the Act to regulate measures for refugees admitted as part of humanitarian aid.34 This provision thus applies, according to the Federal Administrative Provision, to persons entitled to asylum according to Article 16a of the Basic Law, other persons who are politically persecuted within the meaning of section 3 of the Asylum Law, and refugees who are recognized as such in the sense of the Geneva Convention abroad, as well as Jewish emigrants from the former Soviet Union and the successor states as well as the Baltic 33
34
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Heldmann, Auslandergesetz, Kommentar, Frankfurt 1993, § 87 para. 8; Kilic, StAZ 1994, p. 73, 75; Cf. as to the issue of nationality and the Turkish-German relationship Rittstieg, InfAuslR 2001, p. 23; see also Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, section 87 Aliens Act, para. 25. Hailbronner/Rentier, Staatsangehorigkeitsrecht, 3rd edition 2001, section 87 Aliens Act, para. 28.
Comment: Double and Multiple Nationality in Germany after 1999
states, which are treated as "Kontingentfliichtlinge." As a rule, persons in the possession of a travel document for refugees are presumed to be refugees. According to section 87 para. 2 of the Aliens Act, "the requirement set out in section 85 subsection 1 no. 4 shall also be dispensed with where the foreigner possesses the citizenship of another Member State of the European Union and there is a reciprocal agreement." No. 87.2 of the Federal Administrative Provision adds as to the applicability of this exception that if the acceptance of dual nationality in the other EU Member State is limited to special groups, e.g., spouses of EU-citizens, dual nationality will be accepted only for similar groups living in Germany. Before adoption of this provision, any acceptance of dual nationality based on the fact that the applicant was an EU-citizen had been denied by the Federal Administrative Court.35 According to section 87 para. 3 of the Aliens Act, dual nationality may be accepted in cases in which "the foreign state makes release from the previous citizenship conditional upon the performing of military service, and the foreigner has received the major part of his schooling in German schools, and the personal growth and development which has familiarized him with the German way of life and brought him to the age where he is liable for military service has taken place in the federal territory." This provision is identical to the previous section 87 para. 2 of the Aliens Act and the regulation in no. 5.3.3.6 of the former Federal Administrative Guidelines of 1977 governing naturalization.36 The last two exceptions as to the rule of avoidance of dual nationality relate to international agreements (section 87 para. 4) and to the situation of certain minors (section 87 para. 5) under the latter, when the case in which release from the foreign nationality requires that the foreigner have attained the age of majority (and assuming that the requirements of subsections 1 to 4 are also not met), a foreigner who under the law of his state of origin is still a minor shall receive in derogation of subsection 1 no. 1 an assurance of naturalization.37 The September draft of the Federal Administrative Provision (1999) still mentioned that as to state parties of the Council of Europe's Convention on Multiple Nationality of 1963, a loss of the prior nationality would be effected on the grounds of Article 1, a passage that is not to be found in the final version.
III. THE CHANGING ATTITUDE CONCERNING SECTION 25 OF THE NATIONALITY ACT (STAG) Section 25 of the German Nationality Act has been amended as well with the aim of preventing any further "abuse" of this provision by Turkish immigrants. Exceptions 35
36 37
Hailbronner/Rentier, Staatsangehorigkeitsrecht, 2nd edition 1998, p. 342; cf. as to the new provision Hailbronner/Renner, 3rd edition 2001, § 87 Aliens Act, para. 31. Cf. Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, section 87 Aliens Act, para. 33. Hailbronner/Renner, Staatsangehorigkeitsrecht, 3rd edition 2001, section 87 Aliens Act, para. 28 and 39. 357
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for the loss of German nationality in cases of residence within German territory have been deleted. Before this amendment, section 25 RuStAG provided that a German national may lose his or her nationality upon the voluntary acquisition of an alien nationality only if he had no residence or abode in Germany. Some emigration countries, including Turkey, seem or at least seemed to be more willing to renationalize their emigrants, regardless of a foreign nationality acquired in the meantime or residence in an alien country. Taking advantage of this practice, many Turkish applicants would renounce their previous nationality when seeking German naturalization, and after a brief period of time - or sometimes even immediately following the act of naturalization - the person then applied for his or her prior nationality and received it without losing the newly acquired German citizenship owing to continued residence in Germany. Proposals for an amendment that would block this practice appeared as early as 1994: We have to regulate the conditions for losing German citizenship. We cannot introduce easier access to citizenship if we do not tackle the issue as a whole. For example, a person -1 am referring here to a very typical case - who becomes a foreign citizen after having been naturalized as a German, although he lives permanently in Germany shall lose German citizenship. This should also apply for a person who goes back to his country of origin for good.38 Whereas the 1999 amendment to section 25 seems to reflect the principle of avoidance of dual nationality, further amendments seem to be more open as to the acceptance of dual nationality in cases in which a German national living abroad voluntarily acquires a different nationality. The latter provisions were intended on the one hand, to improve the situation of women living in an Islamic surrounding. By offering them the possibility to retain German citizenship, they now may acquire the nationality of their husbands, e.g., Iranian citizenship, while still having the opportunity to return to Germany.39 On the other hand, in order to retain German citizenship it is now sufficient in general that the applicant's interest outweighs the public interest. Further concrete examples of close ties to Germany that would be considered to outweigh the public interest, e.g., close relatives living in Germany, have not been incorporated in the final version of the Federal Administrative Provision.
IV. CONCLUSION AND OUTLOOK The first reaction to the enactment of the Citizenship Reform Act in most federal states was an increasing number of persons applying for naturalization. The figure in some regions doubled or tripled compared to the applications of the previous 38 39
358
Minutes of the German Parliament, 225th sitting, April 28, 1994, protocol 12/225, p. 19406, Erwin Marschewald, CDU/CSU. BT-Drs. 14/533, p. 12.
Comment: Double and Multiple Nationality in Germany after 1999
year; and sometimes additional staff was deemed necessary. On the other hand, it might be doubted whether the increase in applications would automatically lead to an increasing incidence of dual nationality, since, for instance, most of the applications lodged in Hamburg and Wiesbaden were submitted by Iranian nationals, a group, which already under the prior law was overwhelmingly permitted to retain their previous nationality. In addition, it is not certain whether all the applicants will now meet the language requirement introduced in the amended provisions of the Aliens Act and which now is applicable also to the spouse of the applicant. Nonetheless, even if this might not now be reflected in a direct increase in the total number of naturalizations, Germany is apt to accept dual and multiple nationality in a wider range of cases under the amended laws.
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CHAPTER 11
CITIZENSHIP AND MULTIPLE CITIZENSHIP IN TURKISH LAW
Christian Rumpf
I. INTRODUCTION Dual or multiple citizenship is an issue that has been extensively discussed for a while in Germany. It would probably not have had the significance it has today if not for some hundreds of thousands of Turkish nationals who came to Germany for work during the first years of the 1960s. Though most of them probably intended initially to remain for a limited period, a great many later decided to stay and to bring their families to Germany, thus causing a huge wave of immigration and settlement. The population of Turkish origin in Germany now approaches 2.5 million - most of them having been partly integrated into local society, without detaching from their cultural and social origins in Turkey. Being doubly bound to two societies and two cultures, they are confronted with two legal systems with different concepts of how to resolve the problems which arise from such a dual identity. The result has been a sort of clash between two legal systems, one of them, Germany, which historically forced applicants for its citizenship to leave the Turkish nationality, the other one trying to keep up the ties to the country of their ancestors. Turkish citizens willing to continue staying in their new country could respond in one of three ways to this legal clash. The first response was perpetuating as long as possible the right to stay on the basis of the German foreigner's law, without seeking German citizenship. The second was to leave Turkish nationality in order to obtain German citizenship. These two alternatives were the only ones in full compliance with German and Turkish law of citizenship, but neither of them really fits the needs or the social and personal situation of the persons concerned. The third response did comply with Turkish but not with German law: many Turkish citizens in Germany made use of procedural deficiencies and succeeded in obtaining both citizenships. Because the German practice did not require the applicant to have finally renounced Turkish citizenship but only to have started the renunciation David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 361-373 © 2003 Kluwer Law International. Printed in Great Britain.
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procedure, some applicants, after having received the German certificate of naturalization, stopped the Turkish procedure and thus remained Turkish citizens. This would not have been possible if Turkish law had been as strict as the German legislation on citizenship in its vigilance against dual or multiple citizenship.
II. HISTORICAL OVERVIEW1 "Citizenship" in a modern sense is different from "subjecthood" under the absolutistic rule of sovereign monarchs. It implies the adherence of a person to a state in the sense of modern public international law, which assigns citizens both rights and duties. Such a citizenship had been installed in the Ottoman Empire for the first time by the Ottoman Citizenship Act (Decree) of 23 January 1869 (Tabiiyet-i Osmaniyeye dair Nizamname).2 One of the main political reasons was the integration of the population which, because it included many different ethnic and religious groups, had a diffuse structure susceptible to local nationalism and patriotism and thus, according to the Ottoman perception, to treason. It is not by accident that this decree was issued in the midst of the Young Ottoman Movement which, under the influence of well established European nationalisms, felt a need to adopt modern developments in this respect and to fight for national integration of the Ottoman people. At the same time, the Ottoman Citizenship Act has to be considered as part of the general process of modernization and reform of the legal system, including the Constitution, which had started in 1839 (so-called Tanzimat Period3). This first citizenship act was founded on the principle of ius sanguinis, which is still the main basis of Turkish citizenship law. Under the Republic (founded in 1923), the Ottoman Citizenship Act was replaced in 1928. This was a couple of years after the beginning of the Kemalist Revolution which led to the establishment of a republican political and legal order.4 Today, the Citizenship Act of 22 February 1964, Law No. 403,5 with some later amendments,6 serves as the legal basis of Turkish citizenship law. 1
See also Erdogan Goger, Cifte Vatandaslik (Dual Citizenship), www.ankara.edu.tr/law/fdergisi2.html, p. 22 et seq.
2 3
4
5
6
362
See Rona Aybay, Yurttasjik Hukuku (Citizenship Law), Istanbul 1995, p. 36 et seq. For this period, see Christian Rumpf, Das Rechtsstaatsprinzip in der tiirkischen Rechtsordnung, Bonn 1992, p. 41 et seq.; Bernard Lewis, The Emergence of Modern Turkey, London 1961, p. 104 et seq.; Yavuz Abadan/Bahri Savci, Turkiye'de Anayasa Gelismelerine Bir Bakis. (A View to the Constitutional Developments in Turkey), Ankara 1959, p. 19 et seq. Law No. 1312, 23-5-1928, reproduced in Aysel Celikel/Cemal sanli, Turk Milletlerarasi Ozel Hukuk Mevzuati, Istanbul 1991, p. 129. Law No. 403, 11-2-1964, Resmi Gazete (RG, Official Journal) No. 11638, 22-2-1964, Celikel/Sanli p. 135. Law No. 4112, 7-6-1995, RG No. 22311, 12-6-1995; amendments: Law No. 2383, 13-2-1981, RG No. 17254, 17-2-1981; Law No. 3540, 20-4-1989, RG No. 20153, 29-4-1989; Law No. 3808, 27-5-1992, RG No. 21248, 4-4-1992.
Citizenship and Multiple Citizenship in Turkish Law
III. CONSTITUTIONAL BASIS Before focusing on statutory law, we shall have a look to the Constitution. As there have been no substantial changes under the constitutions of 1924, 1961, and 1982, it seems to be sufficient to point to Article 66 of the Constitution of 1982, which provides: Everyone bound to the Turkish State through the bond of citizenship is a Turk. The child of a Turkish father or a Turkish mother is a Turk. Citizenship can be acquired under the conditions stipulated by law, and shall be forfeited only in cases determined by law. No Turk shall be deprived of citizenship, unless he commits an act incompatible with loyalty to the motherland. Recourse to the courts, against the decisions and proceedings related to the deprivation of citizenship, shall not be denied. This article provides some guidelines to be followed by the legislator for the regulation of citizenship. The principle of ius sanguinis can clearly be deduced from the text. The text on judicial access at the end of the article repeats the general guarantee stipulated in Article 125 of the Constitution, but is restricted to cases of expatriation, whereas there is no specific provision on judicial review when an application for naturalization is rejected (see also Part VII below). Some additional explanations seem to be useful for the purpose of understanding the constitutional background of the citizenship law. The first sentence of Article 66, defining the conception of being a "Turk," is of particular interest, to be pursued below. We shall also try to find out if the interpretation of the Constitution leads to any statement on the concept of multiple citizenship under the Turkish Constitution. A crucial starting point is the Kemalist conception of nationalism as reflected in the Constitution of 1982.7 The Republic of Turkey is a Unitarian state which is erected on the principle of central government. The Preamble and Article 2, which establish the ideological framework of the Constitution, refer expressly to the principles of Mustafa Kemal Ataturk as the ideological core of the Turkish constitutional order. This ideology consists of the so called "six arrows," defined as nationalism, secularism, populism, etatism, republicanism, and revolutionary reformism. Since the early beginning of the republican era, especially nationalism and secularism (laicism)8 have been of enormous significance for continuous disputes in Turkish society and politics. 7
8
See Christian Rumpf, Das Nationalismusprinzip in der turkischen Verfassung, Verfassung und Recht in Ubersee (VRU) 1992, p. 404 et seq.; Christian Rumpf, Das turkische Verfassungssystem, Wiesbaden 1996, p. 100 et seq. For this principle and its legal background, see Christian Rumpf, Laizismus, Fundamentalismus und Religionsfreiheit in der Turkei in Verfassung, Recht und Praxis, VRU 1999, p. 161 et seq. 363
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The main material element of the principle of nationalism consists of the indivisibility of the state and the nation. This principle can be found among the general rules of limitation of basic rights and also in special rules of limitation stipulated in specific articles of the Consitution that regulate the guarantees of basic individual freedoms and rights. On the level of statutory law, this principle is reflected in many important restrictions found in the laws governing associations, political parties, the media, political crimes (state security law), and other matters. If we view this constitutional concept in light of the structure of the Turkish population, which is characterized by a large number of ethnic and religious groups with different cultural heritages, languages, and philosophies, we can understand the function and significance of Kemalist nationalism as a vehicle dedicated to the integration of the population in Turkey into a "Turkish" nation. The ideological counterpart of this concept has to be taken seriously. As already recognized by the constitution-makers of 1982, about 99 percent of the Turkish population adheres to the religion of Islam. Out of this figure, 75 to 85 percent belong to the Sunni community whereas the rest consists of the members of other confessions, especially of the Alawite sect. One could dispute to what extent the Turkish population feels sympathetic to fundamentalist Islam or to a more moderate form of belief or even feels unaffiliated with any religious identity. It is not deniable that Islam has an enormous integrative power, which should, according to the Kemalist ideology, be replaced, if not by securalism, then at least by a persuasive concept of nationalism. An ethnic concept of nationalism could not fulfill this integrative function. It would put a large majority of the population, which is of more or less Turkish origin, in a powerful position against a number of minorities, the largest of them being the Kurds. We thus reach the postulation of a "statenation" which is exclusively defined by the objective criteria of citizenship and its equal rights and duties, without reguard to race, language, ethnic identity, or religion. If we now return to the question whether such a concept of citizenship is open to multiple citizenship, we have to admit that there is no possibility to give a clear answer at the constitutional level. At least, there is no room for considerations which refer to ethnic origin, which is familiar to some other constitutions, including the German Basic Law. Ethnic exclusiveness could of course argue for erecting a wall against foreign elements, or at least closing citizenship to people who are not willing to assimilate totally within the Turkish nation and to give up old identities and ties to their former home country. But this is not the Turkish concept. On the other hand, however, the concept of state-nation does not necessarily mean welcoming any person into Turkish citizenship without regard to whether he or she renounces the former citizenship. But in any event, the renunciation of other citizenship as a precondition for the acquisition of Turkish citizenship is not a question of constitutional law and has not been discussed in Turkey on this level so far. The question has been left to the legislator and thus to the level of statutory law.
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Citizenship and Multiple Citizenship in Turkish Law
IV. STATUTORY CITIZENSHIP LAW A. Introduction The relevant statutory regulations appear mainly in the Citizenship Act, Law No. 403. But we shall also point out that some provisions of the foreigners law, especially in respect to residence and profession, contain considerable restrictions. They reflect a policy of extensive protection for Turkish nationals in the Turkish labor market and in access to the professions.9 Other restrictions can also be found in real estate law. Restrictions consist primarily in the prohibition of access to most free professions by non-Turkish citizens. As a result, the respective Turkish provisions are even more restrictive than the German "Anwerbestopp" by which the German government has tried - with a certain amount of success - to limit immigration movements. It is also true that, as we shall see, the Turkish citizenship law does not facilitate naturalization. But all this does not mean that Turkish citizenship law is closed to the possibility of bearing two or more citizenships. Another aspect appears in Turkish settlement policies. The regulations on the settlement of refugees and immigrants10 have to be considered in light of the history of the Ataturk period when, under the treaty of Lausanne and other international and bilateral instruments, Turkey had to face a wave of hundreds of thousands of immigrants coming from the Balkans, around the Black Sea, and other regions which had formerly been part of the Ottoman Empire. The exchange of populations between, for example, Greece and Turkey or Bulgaria and Turkey resulted in regulations which granted privileges to immigrants of Turkish origin. Thus, alien policies began to reflect an element of ethnic and religious nationalism. But again, such policies were not reflected in the text of the Turkish citizenship law. A concept of "closed society" as it might be seen in the statute laws on immigration, settlement, residence, etc., cannot be recognized under the Citizenship Act. B. Acquisition of Citizenship The most important condition for acquisition of Turkish citizenship consists in birth to a Turkish mother or father (genuine acquisition, Article 1). The illegitimate child of a foreign mother obtains Turkish citizenship upon legitimation, if the paternity of a Turkish national can be proved or if such paternity has been legally declared by a court decision or through acknowledgement by the father (Article 2). In these cases neither the legislator nor the government asks whether the child holds another citizenship. In such a case, there is a right, but no obligation to choose (election). The right to choose to leave the Turkish citizenship is limited to two years after the age of majority. 9 10
Cf. Aysel Celikel, VatandaSlik Hukuku (Citizenship Law), Istanbul 1990, p. 124 et seq. Law No. 2510, 14/6/1934, RG No. 2733, 21/6/1934. 365
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Adoption does not lead to acquisition of Turkish citizenship unless the child would otherwise be stateless or the whereabouts of the parents are unknown. If later it turns out that the child had another citizenship, he or she obtains the possibility to choose to leave Turkish citizenship according to Article 27. Without practical significance is Article 4, which provides that children, born on Turkish soil, acquire Turkish citizenship if they do not otherwise obtain citizenship through one of their parents. A foreign woman who marries a Turkish national can choose to acquire Turkish citizenship by option within one month after the marriage (Articles 5, 42).n In such a case she is not forced to resign her former citizenship; of course, she may be urged to do so by the laws of her home country, as it is the case for Germany and was before 1995-for the Netherlands.12 If the marriage ends, the woman has, for three years, the right to choose to leave Turkish citizenship, provided that she does not become stateless. This provision openly relies on the possibility of dual or multiple citizenship.13 Discretionary naturalization is regulated in Article 6. The decision has to be taken by the Council of Ministers. Under Article 6, some preconditions are established, such as full age, five years of residence in Turkey, readiness to remain a resident in Turkey, honorable conduct, lack of epidemic disease, knowledge of the Turkish language, and sufficient income. It is understood that the execution of the discretionary power is influenced by the immigration policies of the day.14 By an amendment in 1989,15 the Council of Ministers was empowered to subject naturalization to a condition ("conditional naturalization," Article 10).16 According to Article 7, the Council of Ministers may excuse the preconditions stipulated in Article 6, if the applicant is the spouse of a Turkish citizen or the child of such a couple; a foreigner of Turkish origin (along with the spouse or a child of full age); a person who has decided to marry a Turkish citizen and for this purpose has taken residence in Turkey; a person who has shown extraordinary performance in the social, economic, scientific, technical, or artisanal field, or is expected to bring such performance; or a person whose naturalization is deemed "necessary" by the Council of Ministers. The law does not require the renunciation of an existing citizenship. 11 12 13 14
15 16
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Before 1964: automatic acquisition. Cf. Aybay p. 45. Cf. Memet Kilic, Rechtsfragen einer deutsch-turkischen Doppelstaatsangehorigkeit, Zeitschrift fur Turkeistudien 1/94, p. 59 et seq. There is some doubt whether this case is a remainder of the "Act of Government" or "political question" theory (cf. Ergin Nomer, Vatandashk Hukuku (Citizenship law), Istanbul 1995, p. 72), which under the Constitutions of 1961 and 1982 has nearly disappeared from judicial practice in Turkey. Governmental discretion is open to judicial control according to the general rules of Turkish administrative law, which is very similar to the French system of "ouvertures" (tests). Furthermore, Article 125 of the Turkish Constitution of 1982 offers full guaranty of judicial review to "everybody," i.e., to Turkish nationals as well as to foreigners. See note 6. Critically Nomer, Vatandaslik p. 72.
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A person who, after acquisition of Turkish citizenship, has later lost it, can be naturalized without the precondition of residence (Art. 8).17 Children who have lost their Turkish citizenship together with their parents may within one year after full age choose to reacquire it (Art. 12). A woman who has been forced by foreign law to surrender her Turkish citizenship because of her marriage with a foreign husband (Art. 19) has a similar opportunity: in case of divorce she has three years to apply for repatriation. In this case Turkish law does not require her to give up her foreign citizenship. Article 14 regulates the case of children whose father has died or is unknown or stateless, or who are stateless themselves, or who are under the custody of their mother: such children follow their mother into Turkish citizenship when she marries a Turkish national. If a man is naturalized, the wife has the right to choose Turkish citizenship if she is otherwise stateless (Art. 15). Children of minor age follow their father into Turkish citizenship; in respect to the mother, the same is the case only if the conditions of Article 14 are fulfilled and if it complies with the law of origin (Art. 16). C. Expatriation, Loss, and Deprivation The voluntary surrender of citizenship is provided for in Article 20. The applicant has to be of full age and of full legal capacity. Furthermore, the applicant has to have at least the serious option of obtaining another citizenship. For men, since 1995, having fulfilled the military service obligation or being finally exempted therefrom, is no longer a precondition for voluntary loss. As a first step the applicant receives permission to leave which is valid for three years. The certificate of expatriation is rendered when the applicant proves to have acquired another citizenship. Related to the voluntary loss of citizenship, Article 21 provides where to apply for the voluntary loss of Turkish citizenship or the acquisition of another citizenship. This stipulation gives the impression that if the applicant only applies for acquisition of another citizenship, he might not be required to lose Turkish nationality. Indeed, such an interpretation turns out to be true, as indicated by Article 32 of the Decree on the Application of the Citizenship Act. According to this provision, the applicant has to indicate in his application form whether he intends to keep his Turkish citizenship. In other words, this regulation is obviously in favor of dual citizenship.18 According to Article 24, naturalization may be cancelled if it is proved that the applicant has acquired Turkish citizenship on the basis of false information regarding facts that constitute a condition for naturalization. The Turkish citizenship law also contains regulations for forcible expatriation, especially in cases where the person concerned escapes from his duties in respect to military service and takes residence 17 18
After expatriation of a naturalized Turkish citizen according to Article 26 (expatriation because of severe infringements against state security), a repatriation is excluded (Article 35). Cf. Aybay p. 47. See also the information given by the Turkish General Consulate of Chicago (http://www.trconsulate.org/citizenship/citizenship.html). 367
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in a foreign country. It also covers cases where the person has taken residence in a foreign country for at least seven years without maintaining contact with any bodies of the Turkish administration and where the person has acquired a foreign citizenship without prior permission of the Council of Ministers (Art. 25). Statelessness is, in these cases, not a sufficient reason to prevent an administrative decision imposing expatriation. D. Results If we summarize the above information, we come to the following results: The Turkish constitutional and statutory provisions on acquisition as well as on the loss of citizenship show that the principle of avoidance of multiple citizenship is implemented in Turkish law quite weakly. Whoever demonstrates that he or she is appropriately linked to the Turkish state is welcome without regard to any other citizenship. In no respect does Turkish law require renunciation of former citizenship when a foreign national applies for naturalization. Only in cases where the behavior of a Turkish national may be interpreted as not being in compliance with loyalty to the Turkish state is the sanction loss of Turkish citizenship - even at the price of Statelessness. But this is not an expression of a policy of avoiding multiple citizenship. It reflects instead a policy calling for loyalty of anyone once he or she is a Turkish national, be it by birth or by later acquisition. In the numerous cases of Turkish nationals who lose their Turkish citizenship in order to gain German nationality, it is not the Turkish but the German law which requires renunciation. According to Article 21 of the Turkish Citizenship Act and Article 32 of the related Decree, the applicant for permission to take on another citizenship is expressly allowed to remain a Turkish national. Similar are the cases of German women who live in Turkey, married to Turkish nationals: quite often they do not make use of the option of Article 5 (to acquire Turkish citizenship), solely because they fear the consequences provided for in the regulations not of the Turkish, but of the German law. It is again the Turkish legislator who has tried to minimize some of the consequences of strict anti-multiple-citizenship policies of countries where large numbers of Turkish nationals have taken residence, and the consequences of dual citizenship.
V. MILITARY SERVICE One dual law, they
of the most important regulations issued to minimize certain consequences of citizenship has been put into force by the legislator in 1992. According to this young men may be excused from Turkish military service if they prove that have served in the foreign country where they have taken residence.19 Turkey
Law No. 3802, 21-5-1992, RG No. 21245 v.1-6-1992; Government Decree No, 93/4613, 5-7-1993, RG No. 21648, 25-7-1993. According to a internet information of the Turkish Ministry of Defense, these regulations are applicable for Germany, Austria, Denmark, Finland, France, Israel, Sweden, Switzerland, and Norway (http://www.asal.msb.gov.tr/webersikcasorulan.htm). 368
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also acknowledges foreign exemptions from the military service, whether for medical reasons, or because of the performance of alternative service.20 Thus, the Turkish legislator has allowed the person concerned to resolve this key element of the potential loyalty conflict arising out of dual citizenship. In times of war, the situation changes. According to Articles 10 and 11 of Decree No. 93/4613,21 without respect to whether the citizen has fulfilled his military service in the army of the country of residence, Turkish law requires strictly his loyalty towards the Turkish state in case of war. If the citizen does not obey the call for service, the expatriation procedure provided by Article 25 of the Citizenship Act is initiated. In other words, if a loyalty conflict between the two citizenships occurs in the time of war, Turkish law forces the citizen to make a decision for or against Turkish nationality.22
VI. FOREIGN CITIZENSHIP AND TURKISH ORIGIN Being connected to the Turkish state is also reflected in the Turkish foreigners law. Whereas the foreigner of foreign origin with residence in Turkey has to struggle for the acquisition of the benefits of Turkish citizenship, proving his or her adherence to Turkish ideals and Turkish culture, the foreigner of Turkish origin is in a different position. Actually, until 1995, Article 29 of the Citizenship Act had clearly stated that foreigners of Turkish origin shall have no privileges. This was changed by what some circles in Turkey call the "lex Rona" and which is known in the public as the "pink card" system (pembe kart).23 Today, foreigners of Turkish origin have almost the same rights in private law as Turkish nationals. Limitations set forth against foreigners,24 such as limitations concerning the acquisition and inheritance of land, access to certain professions and to the labor market, and the rights of residence and travel, are not applicable to foreigners who are of Turkish origin by birth and have renounced their citizenship for the purpose of acquiring another one. As a result, into the Turkish system has been introduced a kind of "hidden dual citizenship," though no political rights have been connected to this concept.
VII. JUDICIAL REVIEW OF ADMINISTRATIVE ACTS The Turkish constitutional system, as a Rechtsstaat observing the rule of law in the western European sense, relies on the principle of no exemption from judicial review See Kilic ZfTS 1/94, p. 73 and StAZ 1994 p. 76. See note 20. Cf. Christian Rumpf, Noch einmal: Rechtsfragen einer deutsch-turkischen Doppelstaatsangehorigkeit, Zeitschrift fur Turkeistudien 1/94, p. 87 et seq. The first nickname honors Prof. Rona Aybay, who was instrumental in its adoption. See Christian Rumpf, Turkisches Staatsangehorigkeitsrecht und Mehrstaatigkeit in Deutschland, IPRax 1996, p. 438; see Aysel Celikel, Yabancilar Hukuku (Foreigners Law), Istanbul 1993, p. 198 et seq.
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of any administrative act. Article 66 of the Constitution itself states that against acts of the immigration authorities - which is the Ministry of Interior - recourse may be had to the Council of State (the supreme administrative court). In such cases the Council of State, generally having the function of an administrative court of cassation, rules in the first and last instance. If a question arises regarding the constitutionality of the statute on citizenship, it may be ruled on by the Constitutional Court on the application of the Council of State. In fact, no citizenship case has yet been brought to the Constitutional Court.
VIII. INTERNATIONAL PRIVATE LAW25 The Turkish International Private and Procedure Law Act (IPPLA)26 is governed by the general rules of connecting links, looking into such ties as citizenship, residence, domicile, the closest bonds, and the location of a good. Article 4 IPPLA regulates the cases where citizenship constitutes the decisive link. In the absence of any citizenship, a "cascade of links" is applied: residence, domicile, and present stay. In case of dual citizenship, one of them being Turkish nationality, Turkish law has to be applied. In cases of more than one citizenship, none of them being Turkish citizenship, Article 4 IPPLA provides for application of the law of the country with the closest ties to the citizen in question. The importance of Article 4 appears in many cases. Consider these examples: • One of these cases is the divorce of a Turkish national from a German-Turkish national. According to Article 5, sec. 1, para. 2 of the German Introductory Law to the German Civil Code, German law has to be applied. According to Article 4, para, b IPPLA, however, Turkish law has to be applied. • If a German with Turkish citizenship wants to marry his niece who is of German nationality, according to German law the marriage is valid, whereas Turkish law prohibits such a marriage.27 • Legal capacity is regulated by the national law of the person concerned (Article 8 IPPLA). According to sec. 2 of the same Article, however, Turkish law may be applicable in case the person is a foreign national but resides in Turkey, if the law of his own country denies legal capacity. In case of dual citizenship, under Article 4, para, b, the Turkish citizenship is given priority. • A party to a divorce under German law may have difficulties in getting the German decree recognized under Turkish law because the German court decision did not comply with the Turkish rule that Turkish law had to be applied.28 Cf. Ergin Nomer, Turkisches Internationales Privatrecht und doppelte Staatsangehorigkeit, Juristenzeitung 1993, p. 1142 et seq. Law No. 2675, 20-5-1982, RG No. 17701, 22-5-1982. Cf. Ergin Nomer, Devletler Hususi Hukuku (International Private Law), Istanbul 1996, p. 107. This is, in fact, not of great practical concern. 370
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• In many other respects, such as succession (inheritance), adoption, and others, citizenship provides the main criterion determining the national law to be applied.
IX. INTERNATIONAL CRIMINAL LAW The problems arising under international criminal law are somewhat similar to those under international private law. Each nation has its own rules, very often applying both the principles of personality and territoriality. In Turkey, international criminal law is provided for in Articles 3 to lOa of the Criminal Code. Article 3 provides that a Turk who committed a crime in the territory of Turkey has to be prosecuted by Turkish courts - without regard to any conviction by another court in a foreign country. This may result in an exception to the rule non bis in idem, in cases where a foreign state claims jurisdiction without any territorial relationship to the foreign country. Such a claim could rely on state security reasons29 or on the ground that the victim is a national of that country. 30 In cases in which an offender holds two nationalities, the principles of personality and territoriality may cumulate in such way that both countries claim personal jurisdiction. On the other hand, Turkish criminal law does not allow double execution of a penal injunction. In other words, if there is already another court decision to be executed and also proper Turkish jurisdiction, the Turkish court has to take the other penalty into account (exception: Article 431). The other side of the coin is extradition. Article 9 of the Turkish Criminal Code clearly prohibits the extradition of Turkish nationals to foreign states. Therefore, if a German who has committed a crime against a German victim in the territory of Germany is captured in Antalya, extradition to Germany will have to be rejected if the relevant Turkish criminal court finds that the offender additionally holds Turkish citizenship. But such an offender will be prosecuted, according to Article 6 of the Criminal Code, in Turkey, if the offense requires punishment of at least one year's imprisonment. Article 4 of the Turkish Criminal Code provides for Turkish jurisdiction over any crime committed against security interests anywhere outside of Turkey, by a Turkish or non-Turkish national. A foreign court decision does not prevent trial and full conviction, because the foreign court would - most likely - not view the interests of Turkish state security but other interests. For example, consider a case where Kurdish militants create barriers on German motorways: before German courts, the Turkish state security interests of unity and indivisibility, protected by Articles 168, 169 and 125 of the criminal code, would play no role; therefore, limited exceptions from the rule non bis in idem are considered legitimate. Article 6 of the Turkish Criminal Code provides for Turkish jurisdiction over a crime committed against the interests of Turkey or against a Turk by a foreign national in a foreign country, if the sanction under Turkish law would not be less than one year of imprisonment. This rule is still applicable - on the application of the Ministry of Justice - even if the foreign national has been prosecuted and acquitted in the foreign country (Article 7). See note 29. 371
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As a result, we can state that Turkish international criminal law does not provide for specific privileges or disadvantages for dual nationals. In minor cases, dual nationality may lead to reciprocal prohibition of extradition and thus to the possibility that an offender might not be prosecuted at all. The only case where a kind of double prosecution may occur (Article 4) is not related to dual citizenship.
X. POLITICAL RIGHTS OF DUAL NATIONALS Dual nationality has no impact on the right to vote at the local, regional, and national levels. Dual nationals can be selected for any position in administration, government, parliament, or the judiciary. In practice, several members of parliament have a second citizenship.32 Tansu (Ciller, former prime minister, is said to have U.S. citizenship in addition to her Turkish nationality. The famous Kavakci case should not be misunderstood as a case suggesting that dual nationals are ineligible for public office in Turkey. After the elections in 1999, it turned out that one of the female candidates of the Islamist party, Merve Kavakci, had recently acquired American citizenship, and she was eventually denied membership in parliament. The political reason for her exclusion was that she refused to enter the parliament without her headscarf; the precise legal ground, however, was that she had acquired American citizenship without prior Turkish permission as provided by Turkish law. The Government expatriated her on these grounds, and her appeals were rejected by the Council of State. Lacking Turkish citizenship, she could not serve in parliament. This case shows that the decisive and sole criterion for access to public office is having Turkish citizenship, without regard to any other citizenship. Finally, the right to join political parties, associations, and trade unions is not limited to citizens of sole Turkish nationality. In this additional respect, Turkish law thus reveals its acceptance of multiple citizenship.
XI. TAXATION OF MULTIPLE NATIONALS Turkish tax law in general looks to domicile, or to facts which are connected somehow to Turkish territory or to Turkish nationality. Whereas the income tax is based on domicile,33 the estate and gift tax is related to the Turkish citizenship of the heir or donee without regard to the location of the goods.34 But dual citizenship does not cause any differences in tax treatment between mono- nationals and multiple nationals. What might happen is that multiple nationals are additionally taxed by the non-Turkish home country. But this is not a result that is caused by Turkish 32
33 34
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Under the Constitutions of 1876 and 1924, candidates with a second citizenship were not eligible for parliament (cf. Aybay p. 46). Art. 3, Law No. 193, 31-12-1960, RG No. 10700, 6-1-1961. Art. 1, Law No. 7338, 8-6-1959, RG No. 10231, 15-6-1959.
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legislation specifically discriminating against multiple nationals. Though Turkey has signed a number of double taxation agreements, including the German-Turkish Double Taxation Agreement,35 estate and gift taxes are not covered. In these cases, therefore, effective double taxation may occur.
XII. CONCLUSION Turkish law raises only a few problems related to dual or multiple citizenship. On the one hand, Turkish law is founded on the basis of the principle of nationalism, but on the other hand, this does not mean that Turkish law prohibits the acquisition of a second or third citizenship. Some problems may arise between Turkey and other states when both states claim jurisdiction over the acts of a dual national. Controversies presented by the conflict of laws are well known, but Turkey does not show any specific significance in this respect. The claim for application of Turkish law, based on the Turkish nationality of the person, is common to most legal systems. In such cases as marriage, divorce, personal status, succession law, etc., conflicts may occur and have to be settled by the general rules of the conflict of laws. In criminal law, multiple citizenship does not create any serious risk of breach of the general non bis in idem rule. To the contrary, in some minor cases, the legal prohibition of extradition of nationals may lead to the individual's not being punished at all. Taxation matters are to a wide extent regulated by double taxation agreements, such as the one between Germany and Turkey. Nonetheless one has to be aware that some kinds of taxes may cause problems to dual nationals, such as estate and gift taxes, which apply to all Turkish nationals at any place inside or outside of Turkey.
Agreement of 16-4-1985, Bundessteuerblatt 1989 I, p. 471 et seq.
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CHAPTER 11 COMMENT
CONSEQUENCES OF DUAL NATIONALITY FOR EMPLOYMENT, PROPERTY OWNERSHIP AND OTHER RIGHTS AND DUTIES UNDER TURKISH LAW
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I. INTRODUCTION Nationality is not only a legal, but also a political, economic, and social relationship with the state. According to one of the more established definitions, nationality is a status and a set of rights which are granted, guaranteed, or enforced by the nation-state.1 In cases of multiple nationality,2 the individual has links not only with his original country, but also with the other countries. In respect of the original nationality, there is generally an organic relationship between the state and the individual person as to which historical and cultural matters play a significant part. The second nationality usually reflects the connection with the society in which the particular individual lives. The most frequent reason for changing nationality is the search for employment in a foreign country, because foreign nationality may be a hindrance in obtaining a job in the residence country. In order to integrate into the society and to attain appropriate working and living conditions, people often prefer to acquire the nationality of the state in which they live, in addition to their original nationality. 1
2
Ergin Nomer, Vatandaslik Hukuku, 12th edition, Istanbul 1999, pp. 14-17; Nihal Uluocak, Turk Vatandaslik Hukuku, Istanbul 1989; Vahit Dogan, Turk Vatandaslik Hukuku, Ankara 1999, pp. 4-5; Erdogan Goger, Cifte, Vatandaslik, (1995)1-4 AUHFD, s.127. For the purposes of the European Convention on Nationality, which opened for signature in Strasbourg in 1997, "nationality" means the legal bond between a person and a state and does not indicate the person's ethnic origin. The words multiple or plural nationality would be technically more accurate than dual nationality. Nonetheless, the concept of dual nationals or dual citizens is more commonly used. For that reason, unless otherwise expressed, in this paper the term "dual nationality" is used to and refer to people who have two or more nationalities or citizenships.
David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 375-382 © 2003 Kluwer Law International. Printed in Great Britain.
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On the other hand, people who settle abroad are less likely to change their nationality if the residence country has no significant limitations on economic and social rights of foreigners. For example, discrimination based on nationality is prohibited by European Union law. According to Article 8(1) of the Treaty on European Union, every person holding the nationality of a Member State shall be a citizen of the Union. Every citizen of the Union shall have the right to move, reside, and work freely within the territory of the Member States. As a remarkable result of this nondiscrimination principle, citizens of Member States feel at home when they move within the Union, and acquiring a Member State's nationality for economic and social reasons is not necessary. Each nation-state has a right to determine under its own law who are its nationals. Mostly, each state has only one category of nationality.3 In considering the development of nationality law, it could be said that different arrangements of domestic nationality laws lead to multiple nationality. That is to say, multiple allocations may arise wherever national laws unilaterally provide the criteria for persons to become nationals. Situations giving rise to multiple nationality could be summarized as follows: -
Naturalization, Marriage, Acquisition of nationality from parents who have different nationalities, Children whose nationality results from both place of birth (ius soli) and parentage (ius sanguinis).
II. DEVELOPMENTS IN TURKISH NATIONALITY LAW RELATING TO DUAL NATIONALITY Until the 1980s the general attitude of Turkey towards multiple nationality developed in a conservative direction. As a result of the increasing number of Turkish workers abroad, however, multiple nationality became a center of discussion. After long debates, dual nationality was accepted by an amendment of the Turkish Nationality Act in 1981. As a result of the Amendment Act numbered 2383,4 a Turkish national
It is worth to mentioning that there are six categories of British nationality, of which only one, British citizen, has an absolute right to enter Britain. "The other five categories are people originating from British dependencies or ex-colonies who had their right of entry into Britain taken away in 1962 or 1968, even though they travel on British passports. The British Nationality Act 1981 sets out the conditions for acquiring five of those nationalities (British citizenship, British dependent territories citizenship, British overseas citizenship, British subject status and British protected person status)." Paul Gulbenkian, Entry and Residence in Europe: Business Guide to Immigration Rules, Edited by Paul Gulbenkian /Ted Badoux, Chapter 1 United Kingdom, 2nd edition, Sussex 1997, p. 15. Official Gazette 17.2.1981/17254. 376
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can request the nationality of another state without surrendering his original nationality. Many Turkish nationals5 have applied to get permission for dual nationality since 1981. The amendment to the Turkish Nationality Act reflects the tendency towards international acceptance of multiple nationality.
III. LEGAL REQUIREMENTS AND PROCEDURE FOR DUAL NATIONALITY Permission for keeping Turkish nationality may be given under the following conditions: - Full mental capacity and maturity, - Acquisition of the nationality of another state, or the existence of convincing evidence that the nationality of another state will be acquired. The request for dual nationality is made through a petition6 submitted to the Because of German Nationality Law requirements, Turkish nationals who live in Germany could not use the opportunity of dual nationality. In particular, the Aliens Law (Auslandergesetz), which entered into force in 1991, granted the right of acquisition of German nationality to foreigners who regularly worked in Germany. But there was an important condition for foreign nationals. This condition obliged a foreign national who applied for German nationality to renounce his or her other nationality (Franz Tepper, Entry and Residence in Europe: Business Guide to Immigration Rules, Edited by Paul Gulbenkian/Ted Badoux, Chapter 8 Germany, 2nd edition, Sussex 1997, pp. 135-136; Rona Aybay,Yurttaslik (Vatandaslik) Hukuku, 3rd edition, Istanbul, 1995, p. 47). There was a conflict between that condition and the intention of Turkish nationals, because they wished to maintain both nationalities (Aybay, 45). The petition must contain the following: - The country in which the applicant habitually resides and the duration of residence; - Education, employment, the ratified and translated copy of work permission and residence permission given by the foreign state's authority; - The place of physical presence of father, mother, young sisters and brothers and information as to their economic situations; - The marital status of the applicant and, if the applicant is married, the place of physical presence of his or her spouse and children; the means for their support; if they live separately, their addresses and information about their economic situation; - Whether the spouse and children above 15 years old want to acquire the foreign state's nationality and the reasons for their wish (if they want, the spouse and children may declare their intentions with a separate petition); - If the applicant is a national of another state, when and how he acquired that nationality (by birth, by choice, or without choice); - A statement of intention to retain Turkish nationality; - For men, whether they completed their military service or not (the relevant documents as to military service must be attached to the petition); - The place of birth registration (a copy of the applicant's personal identity card must be provided with the petition); - If the person has immovable property, a list showing the location of the property; - What kind of work was done in Turkey before; if the applicant had a tax record, the name of the relevant tax office and tax number; - Whether or not the applicant has any debt in Turkey; 377
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highest local administrative officer at the applicant's residence in Turkey. In foreign countries application is made to the Turkish consulate. These Turkish authorities7 open a file and transmit it to the Department of Population Affairs and Nationality at the Interior Ministry. The Department of Population Affairs and Nationality attaches a copy of the applicant's birth registration log and a copy of the military service record to the file. The person is entitled to maintain Turkish nationality if the requirements are satisfied. The only condition for dual nationality is the permission of the Interior Ministry. The applicant may be given a certificate of permission which indicates that there is no legal obstacle to keeping Turkish nationality. The application is reviewed by the Ministry of Interior under the conditions determined by the Council of Ministers, and the Ministry of Interior has discretion to confer or refuse the certificate. The certificate of permission is valid for three years. During that period the Turkish national is obliged to submit the relevant documents concerning the acquisition of another state's nationality to the appropriate authorities. If a person does not provide the Turkish authority with the relevant documents and information, upon the proposal of the Interior Ministry, the Council of Ministers shall decide whether that person will lose Turkish nationality after all. If the Council of Ministers decides that the person should lose Turkish nationality, he or she will thereafter be treated as a foreigner. If the person has not gained another state's nationality, he or she will be treated as stateless.
IV. CONSEQUENCES OF DUAL NATIONALITY CONCERNING RESIDENCE, EMPLOYMENT, OWNERSHIP IN IMMOVABLE PROPERTY, MILITARY SERVICE AND HOLDING POLITICAL OFFICE A. Dual Nationality and Conflict of Laws Some systems of conflict of laws rely heavily on nationality as a connecting factor,8 and therefore decide several questions of private law by reference to the individual's "national law." A difficulty that may arise is to ascribe a definite meaning to the expression of "national law." This is a simple matter when the person is a national of only one country.9 In cases of dual nationality, however, which national law takes priority over the other is a highly important question. Besides dual nationality, there are persons who are stateless, and there are countries that comprise several systems - Addresses (if the applicant later changes his or her address, the new address must be provided immediately). The highest local administrative authority or Turkish consulate officer enquires into the relevant elements of the petition under the circumstances mentioned in footnote 6. If any information that must be provided in or attached to the petition is missing, the petition is returned to the applicant for completion in a correct manner as shown by the officer. John O'Brien, Smith's Conflict of Laws, 2nd edition, London 1999, p. 35. Cheshire/North, Cheshire & North's Private International Law, Edit. PM North/JJ Fawcett, llth edition, London 1987, p. 64. 378
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of territorial law.10 In these cases, determining the meaning of national law remains a major difficulty. The legal status of Turkish nationals who acquire another state's nationality remains unchanged under Turkish law. Despite their second nationality, no discrimination is made between them and Turkish mono-nationals concerning their rights and duties in Turkey. As a principle, in respect of nationality law and conflict of law rules, their Turkish nationality is taken into account. According to Article 4 paragraph (b) of the Turkish Private International Law and Procedural Law Act of 1982, so far as Turkish courts are concerned, if reference is made to the law of the state of which a person is a national and if the person is a national of several states, Turkish nationality shall be taken into account and Turkish law takes precedence over the others. B. Effects of Dual Nationality Concerning Residence, Employment and Acquiring Immovable Property There are no limitations or prohibitions as to the residence of Turkish dual nationals, working conditions, and acquiring immovable property. They have the same position as Turkish mono-nationals. There are two exceptions to this principle, however. One of them emanates from international law. According to this exception, a Turkish dual national who resides in the country of second nationality shall not claim the diplomatic protection of the Turkish state. The second exception, which requires some detailed explanation, concerns military service. C. Dual Nationality and Military Service It could be said that one of the main effects of dual nationality exists in the matter of military service. Turkish law requires every male Turkish citizen to perform military service. In order to avoid double conscription, however, it exempts certain dual Turkish nationals who have performed military service in those states of residence. Turkey is not a party to the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality.11 In 1993, the Council of Ministers laid down in detail the conditions for the fulfillment of military obligations in case of multiple nationality. This special arrangement, which is based on Article 2, subparagraph 13 of the Military Act,12 is the "Council of Ministers Resolution Concerning Criteria under which Multinational Cheshire/North, 64. The Convention was opened for signature on May 6, 1963 and entered into force after the second ratification on February 28, 1968. The Convention has been ratified by Austria, Belgium, Denmark, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Norway, Spain, and the United Kingdom. Act number 1111, Official Gazette 12-17.7.1927/631-635. 379
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Citizens are to be Considered as Having Satisfied their Military Obligations"13 (hereinafter referred to as the "Resolution"). The aim of the Resolution is to avoid double conscription. A person who has performed his military service in the other state can be exempted from conscription under the conditions determined in the Resolution. According to Article 6 of the Resolution, the countries in which dual Turkish nationals can perform their military service and have it recognized by Turkey are determined by the Defense Ministry, which receives the opinions of the Interior Ministry and Foreign Ministry. The Turkish government has published a list of other states in which performing military service could be regarded as sufficient, and persons who performed their military service in those countries are exempted from conscription in Turkey. This list includes Germany, Austria, Denmark, Finland, France (with an exception for those born in 1979 and later), Switzerland, Sweden, Italy, and Norway. As clearly stated in Article 1 of the Resolution, not all dual Turkish nationals are within its scope. The Resolution covers only Turkish dual nationals who carry out certain conditions mentioned in this Article, namely, Turkish citizens: - who were born and reside abroad, or who have gone to a foreign country before the age of maturity, and - who acquired the citizenship of the country where they live. According to the Resolution, under certain conditions, if the person performed his military obligation in the foreign country, he is not obliged to perform military service in Turkey. Besides this, dual Turkish nationals have an opportunity to postpone active military service until the completion of their 38th year. Those who prove the completion of their military service in the country of domicile, and who acquired the nationality of the domicile country before age 38 by means of having been born and resided abroad or having gone to a foreign country with the purpose of residing there will be considered as having carried out their military service (Art. 5/1 of the Resolution). As was mentioned before, the second opportunity for Turkish dual nationals is to postpone their active military service in Turkey. In this situation, the person has an intention to fulfill his military service in Turkey, but some reasons prevent him from participating in the Turkish army. In Article 4 it is said that: Active military service of those who satisfy the conditions mentioned here below will be deemed postponed until the completion of age 38: 1. Acquisition of the nationality of the domicile country by means of having been born and resided abroad or having gone to a foreign country before the age of majority for residence purposes. 13
380
Official Gazette 25.7.1993/21648.
Comment: Consequences of Dual Nationality under Turkish Law
2. Preserving the citizenship of a foreign country and residence in the foreign country during the period of postponement. Applications for the postponement are to be addressed directly or via embassies or consulates to military offices at which the person is registered. The applications are to be in writing and must be accompanied by the original documentation, or approved copies thereof, proving the foreign citizenship. Military service in civil institutions is accepted. If the person proves that he has completed the required service at a civil institution in the state of second nationality, he can be assumed to fulfill the military obligation. According to Art. 5/II of the Resolution: Those having carried out their military service in civil institutions, because there was no need or because they did not wish to render military services for the sake of their beliefs, will be deemed to have satisfied their military obligations.14 Completion of military service or other evidence that the obligations of military service have been satisfied in a foreign country, as well as confirmation of the citizenship of the foreign country, will be proved by original or certified copies of documents. The copies of the respective transactions which are duly translated and approved by the Turkish embassies or consulates shall be enclosed. Mentioned documents are to be submitted to the relevant military offices in Turkey (Article 7 of the Resolution). Health reports received from military hospitals to prove incapacity for military service will be sent to the Turkish Ministry of National Defense (Article 8 of the Resolution). The period of military service performed abroad by those who return to Turkey before the completion thereof, for any reason, will be subtracted from the military service period in Turkey if the person wants to render his military service in Turkey (Article 9 of the Resolution).
A multinational citizen's military service executed in foreign countries will not be accepted in the cases mentioned below (Article 5/III): - Military service executed in a foreign country by those who acquired the foreign nationality after the age of maturity; - Military service executed in the domicile country after the commencement of the military service in the home country by those who carry the nationality of domicile country; - Military service of those who executed their military service in a country which is at war with Turkey or in a country which is allied with this country and who do not respond within one month, without any justification, to the notification for military service provided the authorities; - Military service of those who acted against the Turkish Republic's internal and external security and economic or financial security in a way that constitutes a crime defined by law, during the performance of their military service in foreign country; - Military service carried out in countries in which military service is not obligatory; - Military service of those who are exempted from active military service or who have not rendered alternative civilian service and who are listed as reserved in the countries of which they are nationals. 381
Nuray Eksi
D. Dual Nationality and Holding Political Office The final issue to be considered arises from public office holding. No legal restrictions or prohibitions on office-holding by Turkish dual nationals are in existence. Dual nationals can hold office in the legislative, executive, or judicial branch. Dual Turkish nationals can be candidates for political elections, and may become Members of Parliament. Despite this legal flexibility, the presence of some dual nationals in Parliament and in government attracts public concern. Since 1993, the Turkish public and media have been discussing the position of highly placed officers who besides Turkish nationality have another nationality (particularly U.S. nationality). Some believe that having high administrative positions in the state's institutions filled by dual nationals creates problems for Turkish state security. According to that opinion, these persons could have the right of dual nationality, but should not be granted the right of working as high-level governmental officials. The opposite opinion strongly maintains that dual nationality should not deprive a person of the opportunity to hold a high post in Turkish government, because, for several decades, the Turkish government has espoused an ideology in favor of dual nationality. As a result of this attitude, denying dual nationals the opportunity to work in Turkish high-level public offices is not acceptable.
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IV. Managing Dual Nationality
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MANAGING DUAL NATIONALITY
RECOMMENDATIONS OF THE GERMAN MARSHALL FUND PROJECT ON DUAL NATIONALITY In our interconnected world, more and more people live for extended periods outside their countries of origin. Enhanced commerce and cheaper transportation and communication will certainly sustain and expand this trend. In this setting, the number of humans with strong and genuine ties to more than one country increases steadily. Often these plural ties are reflected in multiple recognized citizenships, even though traditional international law is formally opposed to dual nationality.1 Naturalization is the source of dual nationality in some circumstances. In recent years, many states - both receiving and sending - have eased their former rules requiring the surrender of the initial nationality upon acquiring another, or, without changing the formal rules, have applied exceptions liberally. The growing incidence of cross-national marriages and of residence by co-national couples outside their own countries during child-bearing years has also fed the rise of dual nationality. Certain provisions that formerly limited dual nationality in those circumstances, such as laws that allowed only the father to transmit his citizenship to the children, have been repealed in many countries. Those discriminatory transmission laws that remain will come under increasing pressure, and many will fall, as global efforts toward gender equality take wider hold. Further, many countries that do not readily extend their citizenship to all children born in the national territory have met with difficulties in reaching the goal of integrating second- and third-generation foreigners. In the view of many observers, a greater acceptance of dual nationality would both facilitate naturalization of permanent resident foreigners and contribute significantly toward enhanced integration. It would also more accurately reflect the multiple ties and allegiances that human beings really do experience in an interconnected world, and it would make it easier for those people to travel freely between It is clearly possible for a person to hold more than two nationalities. For convenience, however, this paper uses the term "dual nationality" to include reference to multiple nationalities, no matter what the total.
David A. Martin and Kay Hailbronner (eds.), Rights and Duties of Dual Nationals, 385-388 © 2003 Kluwer Law International. Printed in Great Britain.
Recommendations of the German Marshall Fund Project
the countries where their connections exist. Opponents of dual nationality, on the other hand, are concerned that the status may reflect divided loyalty or may inhibit feelings of solidarity or attachment that can be vital for the national community and for well-functioning democracy, especially in times of crisis. They also point to practical problems involving military service, the exercise of political rights, conflict of laws determining civil status, and diplomatic protection. We have examined many of these questions in the course of this project, which has included useful meetings in Germany, Mexico, Turkey, and the United States. Our work has generated scholarly studies - set forth earlier in this volume - meant to illuminate the facts underlying the increased incidence of dual nationality, the evolving attitudes and perspectives on the status, and the changing legal and administrative regimes in relevant fields. General conclusions. The trend toward increasing dual nationality will not abate, and the focus of the international system should shift from resisting the trend and suppressing dual nationality toward managing its impact through a more harmonious body of law and practice. National allegiance is not necessarily indivisible. Modern liberal societies accept a host of competing loyalties within their borders - to family, locality, religion, economic enterprise, sports club - and should not feel unduly threatened by dual national loyalties. The increasing convergence of state interests and values (based on some version of market economies and democratic political systems that protect basic human rights) helps make the idea of multiple allegiances more acceptable. There is no guarantee of compatible values between particular nations, of course, but the limited occasions on which national differences generate sharply conflicting demands on dual nationals can be managed through measures short of a complete ban on dual citizenship. When properly designed, those other measures can also continue to serve the important values of political solidarity and equality that shared citizenship should represent. At the same time, states should accommodate those who wish to expatriate, provided they have a new nationality thereafter. After all, dual national status can sometimes cause real complications, and in any event some who naturalize genuinely wish to be subject thereafter only to the web of rights and obligations of the new country of nationality. Further, citizenship transmission rules should not allow citizenship to extend to distant generations after the family has lost all real connection with the country concerned. Specific recommendations.2 We recommend that states observe the following points in dealing with dual nationality: 1. States should accept dual nationality when it represents a genuine link with Although the recommendations were discussed during project meetings, full consensus was not expected. Most participants were strongly in accord with the general conclusions, but there were differences of view and spirited discussion regarding the specific recommendations. It should not be assumed that any participant necessarily agrees with a specific recommendation. The project co-directors take principal responsibility for this document. 386
Managing Dual Nationality
2.
3. 4.
5.
6.
7.
the countries concerned. Genuine links include those established through a parent's citizenship, birth in the national territory, and periods of lawful residence therein.3 The international community should take steps to discourage citizenships of convenience. Rules applied to naturalization should be eased accordingly. States should no longer regard the acquisition of citizenship elsewhere as an event automatically causing the loss of the original citizenship. Similarly, the new state of nationality should not require the renunciation or loss of former nationality as a condition of naturalization. On the other hand, states should normally permit and recognize the relinquishment of citizenship upon the free choice of an individual who will not thereby be left stateless. The primary obligations of a dual national run to the state of residence, and that state should serve as the primary protector of the individual. Many states already are parties to treaties that parcel out military obligations in this fashion or that recognize the primary claims of the country of dominant and effective nationality, including that country's authority to provide diplomatic protection. As a corollary to recommendation 4, most questions of civil status and conflict of laws in the case of a dual national should be resolved by reference to the laws of the country of principal or habitual residence. In service of the values of solidarity and equality (and also to promote an informed and responsible vote), dual nationals should focus their political activities in the state of residence, and generally should vote only there. States may validly limit the voting rights of dual nationals in accordance with this approach, particularly if such limitations will facilitate the wider acceptance of dual nationality status. Dual nationals should generally surrender other nationalities before assuming policy-level positions in a national government.4 Although the risk of actual conflict of interest is low in the vast majority of such cases, conflicts can arise suddenly and unexpectedly. When they do, they can have spiraling effects in souring relations between the two countries involved. The country of nonresidence also has a valid stake in assuring that its nationals do not assume high office in another polity, because that country risks being blamed if policies chosen by the official (even in the best of good faith) turn out badly. After the actual or perceived conflict has arisen, it may be too late to cure the damage by surrendering one of the nationalities.
Once a nationality is established on the basis of a genuine link, the genuine link principle has completed its work. States should neither deprive current citizens of nationality, nor refuse to recognize a citizenship status once properly acquired, based on a judgment that the link has become attenuated (such as through lengthy residence elsewhere). Such attenuation, however, might validly provide a basis for limiting transmission of citizenship to later generations. We do not attempt here to sketch the dividing line separating policy-level positions from other government service, but ordinary civil-service posts should not be closed to dual nationals. 387
Recommendations of the German Marshall Fund Project
8. States should seek to conclude international agreements to facilitate dealing with these questions, especially those involving military obligations and other conflicts of law (treated in recommendation 5). In particular, an agreed set of criteria for deciding which country is the country of principal or habitual residence (or which nationality is dominant and effective) would be useful. 9. With due attention to privacy concerns, governments should find ways to modify their census procedures, naturalization procedures, birth registries, or other data collection efforts in order to develop a more accurate picture of the changing demographics of dual nationality.
388
INDEX Absentee voters 141, 142, 317 An Act Concerning the Rights of American Citizens in Foreign States (1868) (U.S.) 110 Adoption, loss of nationality after 254-257 Afroyim v. Rusk 231, 239, 318 Aleinikoff, T. Alexander, on denationalization 118 Alien Act (2000) (Germany) 185-186, 188, 194-195 Aliens Act (1990) (Germany) 167, 185, 335, 336-337, 347 acceptance of nationality in 351-357 Allegiance. See Loyalty Anderson, Benedict, on absentee voting 317 Australia dual nationality agreements of 162 renunciation requirements of 6 restrictions on officeholding by dual nationals in 147 Austria grounds for loss of nationality in 221, 253, 259 renunciation requirements of 265 Bancroft, George, on dual nationality 158-159 Bancroft treaties 110,158-159 Baubock, Rainer, on voting rights of nonresident citizens 144 Belgium exceptions to loss of nationality in 207-208 grounds for loss of nationality in 234, 242-243, 259 renunciation requirements of 264 residency requirements for voting in 136-137
Bilateral treaties, regarding military service of dual nationals 94-100 age deferments for 104-105 habitual residence in 101-103 prohibition of double conscription in 100-101 voluntary service followed by conscription in 103-104 Brazil, recognition of dual nationality in 306 Brussels Convention on the Jurisdiction and Enforcement of Judicial Decisions in Civil and Commercial Matters (1968) 71 Canada conscription in 99 dual nationality agreements of 162 grounds for loss of nationality in 245-246, 249 investor immigrant program in 172-173 policy on foreign military service in 121-122, 169 renunciation requirements of 6, 266 Canevaro case 23-24 Case No. A-18 24 Children abduction of, and judicial cooperation in matters of parental custody 72-73 special German nationality law for 339 Citizenship commodification of 170 177 criteria for 42-43 definition of 304, 362 equality and 13-14 from the perspective of public law 49-50 as plural 45 use of term 80
389
Index Citizenship Act (1964) (Turkey) 363 Citizenship Reform Act (1999) (Germany) 340-342, 347, 353, 358-359 Citizenship USA program (1995), effect of on naturalization rates 324 Civil law, impact of nationality on 17-18 Civil war, multiple military obligations in 169 Colombia, recognition of dual nationality in 307-308, 313 Comite Colombiano Pro-Reforma Institutional: Doble Nacionalidad y Circumscription Electoral en el Exterior 307 Conference for the Codification of International Law (1930) 91 Conscription, of dual nationals 16-17, 123 See also Military service, of dual nationals age deferments for 104-105 contemporary policies of 89-91 double 94, 100-101, 379 international agreements on 91-98 judicial cooperation regarding 170 by non-resident states 105-107, 108 residing in third states 107-109 voluntary military service followed by 103-104 Convention on the Nationality of Married Women (1957) 202,271 Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality (1963) 92-93, 129, 160 Convention on the Reduction of Statelessness(1961) 160 Convention on the Transfer of Sentenced Persons (1983) 62,63 Convention Relating to the Statelessness of Persons(1954) 159-160 Costa Rica, recognition of dual nationality in 306 Council of Europe judicial cooperation within 170 protocols for military service of dual nationals 93-94 390
Crime, transnational, facilitated by dual nationality 174-175 Croatia, non-resident representation in 145 Custody, parental, judicial cooperation in 72-74 Death penalty, extradition and 58 Demographic boundary maintenance regime 158, 160, 163 Denationalization, by the state 120, 165 See also Loss of nationality because of foreign military service 114-119 Denmark grounds for loss of nationality in 242 renunciation requirements of 266 Diaspora transnationalism of 36 voting by 14 Diplomatic protection, of dual nationals 15, 22-25 Divorce, judicial cooperation in 64-70 Dominica, economic citizenship program of 171 Dominican American Roundtable 316 Dominican Republic, recognition of dual nationality in 307, 308-310 Draft. See Conscription, of dual nationals Dual nationality 3 See also Multiple nationality; specific countries administrative limitations regarding 199-200 administrative responsibility for verification of 189 of athletes 149 at birth 8-10 See also Jus sanguinis; Jus soli changes in national culture and 15-16 civil status laws and 17-18 competing interests in 378-379 of immigrants 312-314 of receiving countries 318-320 of sending countries 314-317 conflicting obligations of 25-26 diplomatic protection for 15, 22-25 evolution of 4-5
Index foreign policy component of 316-317 gender discrimination in 10 investor immigration and citizenship programs and 171, 172-173, 176-177 limitations of 5-10 limits of unilateral actions against 164-167 loyalty and 11-12 methods of acquiring 81-82 military service and 16-17, 84-86 officeholding and 16-17 problems inherent in 83-84 reasons for rise in 82-83 recognition of in Western hemisphere 304-312, 328-330 resulting from naturalization 6-8 rise in 28, 38-39, 79, 122-124 state administrative responsibilities in 195-197 transnationality of 41-42 voting and 12-15 voting restrictions for non-resident citizens 136-138 ECN. See European Convention on Nationality (1997) Economic citizenship programs. See Investor immigration and citizenship programs Ecuador, recognition of dual nationality in 307, 308 El Salvador, recognition of dual nationality in 307 Equality and citizenship 13-15 of dual nationals in Germany 197-198 franchise as measure of 143-144 Esphahanian v. Bank of Tejarat 24 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 4 European Convention on Extradition (1957) 61 European Convention on Nationality (1997) 5,21,94,127,169-170 Article 7, 202-203
Article 8, 203-204 grounds for loss of nationality in 202-203, 275-278 See also specific grounds European Union. See also specific countries citizenship in 46 judicial cooperation among 175-176 renunciation requirements of 163 Expatriation definitions of 110-111 involuntary. See Denationalization, by the state voluntary 109-114 Extradition 57-62, 371 Federal Administrative Provision (Germany) 347, 351-357 Feldblum, Miriam, on citizenship 29 Foreign Enlistment Act (Canada) 169 Foundlings, loss of conditional nationality by 272-273 France acceptance of dual nationality in 205-206 denationalization by 115-116 dual nationality agreements of 162 grounds for loss of nationality in 235-236, 244 renunciation requirements of 6, 266 Franchise disqualification. See Voting rights Franck, Thomas, on citizenship 30 German Basic Law constitutionality of Nationality Act and 342, 343-344, 348, 356 German Constitutional court on definition of nationality 19 on dual nationality as an evil 348-349 German Marshall Fund Project on Dual Nationality vii-ix, 386-388 Germany acts on naturalization in 335-336 Bancroft treaties and 158-159 bilateral treaties regarding military service of dual nationals 132-133 compulsory military service in 129, 130, 354-355 391
Index conscription in 91 countries of origin of naturalized persons in 189-192 data on dual nationality in 335 denationalization by 117,188-189 dual nationality agreements of 162 exceptions to loss of nationality in 207-208 grounds for loss of nationality in 227, 247, 260 implementation of nationality law in 186-189 judicial cooperation in marriage or divorce of dual nationals in 65-70 jus sanguinis in 195-197 jus soli in 10, 337, 339, 342-343, 347 legal basis to avoid or accept dual nationality in 185-186 optional model of dual nationality in 195-197 primacy of German nationality in 66 principle of avoidance of dual nationality in 183-185, 338-339, 348-349, 350 re-acquisition of citizenship after naturalization 187-188 reform of nationality law in 338-340 regional differences in politics of citizenship in 192-195 renunciation requirements of 6, 111, 131, 166, 265, 349-350, 356-357 Turkish immigrants in 358, 361-362 Geyer, Georgie Anne, on competing allegiances of dual nationals 319 Globalization defined 27 effect of on dual nationality 170-177 undermining of state sovereignty by 31-32, 33 voting rights of non-resident citizens and 136-138 Greece exceptions to loss of nationality in 212 grounds for loss of nationality in 229, 236, 244 military obligations of dual nationals in 132 renunciation requirements of 267
392
Green Card Replacement Program, effect of on naturalization rates 324 Habitual residence test 101-103, 131 maintenance obligations and 70-72 and prevention of double conscription 92, 95-96 Hague Convention Governing Certain Questions Relating to the Conflict of Nationalities (1930) 4, 25, 91, 159 Hague Convention on the Civil Aspects of International Child Abduction (1980) 73-74 Hague Convention on the Conclusion and Recognition of the Validity of Marriages (1978) 69 Hague Convention on the Conclusion of Marriages (1902) 69 Hague Convention on the Jurisdiction and the Recognition and Execution of Decisions in Matters of Marriage (1988) 69 Hague Convention on the Jurisdiction of Authorities and the Applicable Law Relating to the Protection of Minors (1961) 72 Hague Convention on the Law Applicable to Maintenance Obligations towards Children (1956) 71 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations (1973) 71 Hague Convention on the Recognition of Divorces (1970) 69 Hague Convention on the Results of Marriage (1905) 69 Hague Convention Respecting the Laws and Customs of War on Land (1907) 119 Hammar, Tomas 82, 111 Human rights citizenship and 46-47 nationality and 20 Iceland, grounds for loss of nationality in 253 Imperial Nationality Act (1913). See Reichs-
Index und Staatsangehorigkeitsgezetz (RuStAG)(1913) Information systems, for registration of dual nationals centralized 197-198 decentralized 195-197 Inheritance, judicial cooperation in 74 Integration, multiple nationality and 51 International law codification of 91 customary, and codification of norms regarding dual nationality 159-160 private, judicial cooperation and 70-71, 75 International Private and Procedure Law Act (1982) (Turkey) 370-371, 379 Investor immigration and citizenship programs 171, 172-173 international resistance to 176-177 Iran-US Claims Tribunal 24 Ireland grounds for loss of nationality in 212-217, 237-238, 245, 260 renunciation requirements of 264 Italy acceptance of dual nationality in 205 206 grounds for loss of nationality in 229, 254 renunciation requirements of 265 lus sanguinis. See Jus sanguinis lus soli. See Jus soli Jacobson, David, on citizenship 30 Johannessen v. United States 219-220 Jones-Correa, Michael on dual citizenship 39 on naturalization rates 321 Judicial cooperation 55-57, 76-77 challenges of 157-158 in civil matters execution of foreign judgments 64-76 gathering and transmission of evidentiary material 63-64 inheritance 74 maintenance obligations and 70-72 marriage and divorce 64-70
parental custody 72-74 in criminal matters execution of foreign judgments 62-63 extradition 57-62 transfer of sentenced persons 62-63 to reduce cases of dual nationality 158-163 regarding multiple military obligations 168-170 standards for 75-76 Jus sanguinis 5, 81, 158 application of 8-10 in Germany 195-197, 337 rise of women's movements and 161 in Turkey 363 Jus soli 8, 9, 81, 158 in Germany 10, 337, 339, 342-343, 347 Kavakci case 155-156 Kawakita v. United States 318 Koslowski, Rey 89 Lame marriage, between dual nationals 68 Latin America, dual nationality in 304-306 See also specific countries Law on International Assistance in Criminal Matters (1982) (Germany) 62 Legomsky, Stephen 127 Lesperance, David 171-172 Liberalism, bilateral 100 Livingstone, Robert 175 Loss of nationality 201-202 See also specific countries because of recognition or legitimation of a child by a foreigner 274-275 conditional foundlings and 272-273 stateless children and 273-274 consequences for children difficulties with 260-261 national provisions for 258-259 treaties regarding 257-258 due to adoption 254-257 difficulties with 256-257 national provisions for 255-256 treaties regarding 254-255 393
Index due to lack of genuine link in case of being born abroad 246-250 exceptions to 250-251 national provisions for 241-246 possible complications caused by European Community laws and 250 treaties regarding 240-241 trends in 251-252 due to loss of family relationship 252-254 due to renunciation or release 109-114 national provisions for 264-268 treaties regarding 261-264 due to revocation because of fraud 215-225 failure to divest former nationality in 222-223 treaties regarding 215-216 trends in 224 due to serious prejudicial behavior national provisions for 234-240 treaties regarding 223-234 trends in 240 due to state denationalization 114-119 due to voluntary acquisition of foreign nationality 211 difficulties with 213-214 exceptions to 207-210,211 special solutions to 212-213 treaties regarding 205-206 trends in 214-215 due to voluntary foreign military service civil service and 229-232 deprivation and 228-229 difficulties in 233 ex lege 226-228 treaties regarding 225-226 trends in 233 in Germany 341-342 grounds for 202-203, 275-278 See also specific grounds marriage and 268-272 statelessness and 224, 232 in Turkey 367-368 Loyalty, dual nationality and 11-12, 319-320
394
Luxembourg, grounds for loss of nationality in 238, 243, 259 Maintenance obligations, judicial cooperation in 70-72 Marriage judicial cooperation in 64-70 loss of nationality and 268-272 Marshall. T. H., on citizenship 45 Martin, David on voluntary renunciation 114 on voting rights of non-resident citizens 143-144 Martin, Philip 162 Merge case 23-24 Mexico denationalization by 117 disqualification of dual nationals from military service in 87 dual nationality agreements of 162, 164-167 expatriate outreach programs in 315 foreign policy of 316-317 grounds for loss of nationality in 206, 231, 250 naturalization trends in 7-8 non-resident voting and 139-141 policy on foreign military service in 121 recognition of dual nationality in 310-311 Migration, and rise in dual nationality 83, 163 Military service, of dual nationals 16-17, 84-86, 127-129 See also Conscription, of dual nationals age deferments for 104-105 and armed hostilities between two dual nationality states 119-122 conscription for 88-109 age deferments for 104-105 contemporary policies of 89-91 double 100-101 international agreements on 91-98 voluntary service followed by 103-104 disqualification for 87
Index loss of nationality and 109-119, 225-233 multilateral conventions on 98-99 multiple obligations for 168-170 as prejudicial behavior 232 significance of habitual residence for 92, 95-96, 101-103, 131 voluntary 86-88 Minors. See Children Moldova exceptions to loss of nationality in 212 grounds for loss of nationality in 217, 228, 238 renunciation requirements of 267 Mono-nationality. See also Dual nationality enforcement of election of 10 jurisdiction over, abroad 59 voting and 13-14 Multilateral treaties, regarding military service of dual nationals 129-132 Multiple nationality 3 See also Dual nationality and decline of sovereignty 31-34, 37, 50-51 as form of postnational citizenship 38-45 genuine and effective link theory and 22 jurisdiction over 26 normalization of 47-48 self-determination of 40 Nationality. See also Dual nationality; Mono-nationality; Multiple nationality; Postnationality; Transnationality changing attitudes towards 20-22 changing concept of 19-20 definition of 201, 304 effective 24, 59 extradition and 58 loss of. See Loss of nationality use of term 80 Nationality Act (Germany) 9, 335-336, 337, 344-345, 347 changing attitude concerning section 25 of 357-358 constitutionality of jus soli system in 342-343
constitutionality of optional model under 343-344 Nationality Act (Turkey) 376-377 Naturalization dual nationality and 6-8 effects of recognition of dual nationality on 322-326 rates of 321-322, 325-326, 350 by time period 327-328 regulation of 185-186 rise of 187-188, 192-195 Netherlands acceptance of dual nationality in 205-206 dual nationality agreements of 162 grounds for loss of nationality in 220, 227, 243, 258 renunciation requirements of 6, 262 Neuman, Gerald 100 Non-residents assimilated representation for 144-146 concerns about responsible voting by 139-141 discrete representation for 144-145 voting rights of 136-138, 138-144 administration of 141-142 Nottebohm case 19 Officeholding, by dual nationals 154-156, 381-382 restrictions on 146-152 Orozco, Manuel 315 Ottoman Citizenship Act (1869) (Turkey) 362
16-17,
Paisano program 315 Panama, recognition of dual nationality in 306 Passive personality principle, in extradition requests 61-62 Permanent residence. See Habitual residence test Perpetual allegiance doctrine 158 Personal data, protection of, and registration of dual nationals 197-198 Personal jurisdiction, bond of, extradition of dual nationals and 60
395
Index Peru, recognition of dual nationality in 306 Pickus, Noah, on competing interests of dual nationals 318-319 Pinochet, Augusto, conflicting requests for extradition of 61-62 Plural nationality. See Dual nationality Poland grounds for loss of nationality in 260 renunciation requirements of 267 Political rights, of dual nationals 26, 135-136, 153, 372 Portugal, grounds for loss of nationality in 248 Postnationality of citizenship 45-47 denning 30-37, 49-50 multiple nationality as form of 38-45, 47-48 Program for Mexican Communities Living Abroad 315 Promotion of Colombian Communities Abroad 316 Protocol Relating to Military Obligations in Certain Cases of Double Nationality (1930) 92,93 Receiving states competing interests of 318 dual nationality agreements of 162 Reichs- und Staatsangehorigkeitsgezetz (RuStAG)( 1913) (Germany) 128, 185-186, 188, 336, 337, 358 Renunciation 131 See also Loss of nationality definitions of 110-111 ECNon 261-268 German requirements of 185-186 U.S. requirements for 164-167, 318 voluntary 109-114 Repatriation to Germany 187-188 to Latin America 307 Representation assimilated 144 disadvantages of 145-146 discrete 144-145
396
Residency requirements for avoidance of double voting 178 conscription and 92, 95-96, 101-103, 131 expatriation and 112-113 justifications for 138-144 for political fundraising purposes 146 voting rights and 135-138 Rosenau, James, on postinternationality 31 Rubenstein, Kim, on citizenship 29 Schuck, Peter, on dual nationals 44 Sending states competing interests of 314-317 dual nationality agreements of 161 Sheinbein, Samuel 175 Sovereignty decline of 31-34, 37, 42-44, 50-51 as economic growth tool 173-174 nationality and 20 Soviet Union, dual nationality agreements of 161-162 Soysal, Yasemin on citizenship 29 on postnationality 30-31 Spain exceptions to loss of nationality in 207-208, 209 grounds for loss of nationality in 217-218, 230, 238 Spiro, Peter 89 on citizenship 29-30 on dual nationals 44, 83 on naturalization rates 321 Statelessness 159-160 of children 273-274 loss of nationality and 224, 232, 240 voluntary expatriation and 111 Straubhaar, Thomas 173 Subjecthood, defined 362 Suffrage. See Voting rights Switzerland dual nationality agreements of 162 grounds for loss of nationality in 218, 238, 253 military obligations of dual nationals in 133
Index Tax evasion judicial cooperation against 175 use of dual nationality for 171-172, 174 Transnationality. See also Dual nationality cross-national migration in 34-35, 36 definitions of 41-42, 49-50 politics of 36-37 rise in multiple nationality and 40 subjective experience of 35-36 Tunisia, denationalization by 115-116 Turkey acquisition of citizenship in 365-367 conscription by 90-91, 99 consequences of dual nationality in 378-382 constitutional basis of nationality in 363-364 denationalization by 117 development of nationality law in 376-377 dual nationality agreements of 162 expatriation by 367 foreign citizenship in 369 grounds for loss of nationality in 218, 231, 238-239, 271 international criminal law in 371-372 international private law in 370-371 judicial review of administrative acts in 369-370 legal requirements and procedure for dual nationality in 377-378 military obligations of dual nationals in 133 obligatory military service in 368-369, 379-381 officeholding by dual nationals in 154-156, 381-382 policy on foreign military service in 121-122 political rights of dual nationals in 153, 372 renunciation requirements of 111, 265 statutory citizenship law in 365-368
taxation of dual nationals in 372-373 voting rights of dual nationals in 153-154 United Kingdom dual nationality agreements of 161-162 grounds for loss of nationality in 216, 236-237, 247-248 investor immigrant program in 173 United States conscription by 99 denationalization by 116-117 grounds for loss of nationality in 213, 218-219, 230-231 renunciation requirements of 6, 112, 164-167, 266 Universal Declaration of Human Rights 109 loss of nationality and 201-202 Uruguay, recognition of dual nationality in 306 Vance v. Terrazas 231, 239, 318 Voting rights 135-138, 153-154, 317 double voting and 177-179 dual nationality and 12-15 justifications for residency restrictions on 138-144 of non-resident citizens 143-144 War of 1812, conscription of dual nationals and 89 Wartime, expatriation during 112 Welfare Reform Act (1996) (U.S.), effect of on naturalization rates 323-324 Women's movements, increase in dual nationality and rise of 160-161 Yang, Philip, on competing interests in dual nationality 314 Yugoslavia dual nationality agreements of 161-162 grounds for loss of nationality in 227
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