Abstract
Plural nationality is as normal as single nationality, and it is accepted as inevitable by more and more states. It is the natural result of the existence of states and the vast and overlapping diversity of criteria for attribution of nationality. Von Savigny and Laurent wrestled in their time with similar problems as we witness nowadays, although new phenomena such as sexual equality and increased mobility create new urgencies. Brexit prods some states into embracing dual nationality. Some sensitive areas are explored, first of all antiterrorist measures in the field of nationality, where plural nationality is welcomed as it enables states to divest themselves of unwanted citizens. These policies are discriminatory and weaken the bond of nationality for monopatrides as well. Finally, George Scelle’s theory on dédoublement fonctionnel is used to explain that Member States attribute the nationality of the European Union, leading to Union citizenship, alongside the Union citizenship as based on the nationality of the Member States. This explains the differences between national citizenships and the more limited Union citizenship.
1. Introduction
One of the eternal themes, studied by legal scholars all over the world, is that of the existence of persons possessing more than one nationality. The pertinent questions in this debate concern which factors produce this phenomenon? How widespread is the phenomenon? How do nations deal with it, for example, under private international law? Should the phenomenon be embraced or suppressed? And finally, which relations exist between the shape of nationality laws and the underlying ideas about the identity of nations or communities within states? These, and many more questions, are currently being asked, and René de Groot, in many of his overwhelming list of publications on nationality law, is one of those whom has approached most of those quandaries with great authority. 1 Indeed he is one of the internationally acclaimed oracles of nationality law, and it is with humility that I dare offer him a few stray remarks on the subject.
First, I will submit that plural nationality is as common and natural as single nationality (Section 2). Then I will dig into the history of nations and nationality and exhibit what Von Savigny and Laurent have to say about the subject (Sections 2 and 3). Then, this article will proceed to argue that a number of global developments have increased the importance of plural nationality and have diminished the ideological framework of laws on nationality (Section 4). Of course, plural nationality encounters both problems and opportunities. As an example, attention will be given to anti-terrorist measures and its effect on nationality laws (Section 5). Finally, an excursion is made into European Union citizenship as a corollary of Member State nationality. It is argued, that there exists a missing link in the form of a virtual Union nationality (Section 6).
2. Plural nationality is normal: Von Savigny revisited
Dwelling on the topic of plural nationality, one unavoidably encounters the concept of nationality in its plainest form: mono-nationality. I use the word mono-nationality on purpose, because it highlights my suggestion that both types of nationality – that is, single and plural nationality – are to be considered as being on an equal footing and that one is not more exceptional or anomalous than the other. For this juxtaposition, the main argument is derived from public international law. It is generally agreed that the 1997 European Convention on Nationality 2 codifies international law insofar as it declares that ‘each State shall determine under its own law who are its nationals’ (Article 3(1). The 1997 Convention further explains that for the purposes of the Convention, the term ‘“nationality” means the legal bond between a person and a State and does not indicate the person’s ethnic origin’ (Article 2(a) of the 1997 European Convention on Nationality)). In the Explanatory Report to this article, the 1955 Nottebohm decision of the International Court of Justice 3 is mentioned, whereby ‘the concept of nationality was explored’. Explored: not settled. 4 Whereas the Convention allows states to provide for the loss of their nationality when a genuine link between the state party and a national residing habitually abroad is absent (Article 7(1)(c) of the 1997 Convention), a positive requirement that a genuine link is present to allow a state to bestow its nationality on a person is blatantly absent. More than an unexpressed assumption that there should be some basis for granting a nationality is not to be found in the text of the 1997 Convention. The long-term absence of a person from the territory, that is migration, is in itself not sufficient for the loss of his or her nationality; the Explanatory Report suggests an absence for generations. 5
Because there are little or no restraints on the way that states are allowed, by international law, to define their personal substratum, that is their ‘people’, in creating the legal bond called nationality, it is only to be expected that plural nationality occurs. As a formal definition, the term ‘legal bond’ suffices; states are free to fill this empty shell with whatever type of connection they deem appropriate. Even if it may be true that a ‘genuine link’ is required – and in my opinion this requirement, derived from Nottebohm, concerns the recognition of a nationality by other states and not the rules on attribution themselves – it is obvious that states may and indeed do differ widely in their respective conceptions of genuineness. The result is that a person may be subject to a vast array of criteria for the attribution of nationality, and thus become plurinational (or, for the same reason, remain or become stateless). Whether the connections are to be considered as sufficient or ‘genuine’ is ultimately an ideological-political matter, and views on the subject vary and have changed widely depending on time and place. They are not immutable, although some criteria are predominantly present. From times not so immemorial, as nationality law is scarcely older than two centuries, descent (that is, ‘race’, ethnicity) and territory have taken centre stage, though they are far from exclusive; absorption through naturalization has become a common and important way of admission to a given nationality.
Even Von Savigny, old historical school as he was, rejected the idea that one should look at the Roman law on origo and domicilium in order to arrive at solutions for his day in July 1849, as he wrote the famous eighth volume of his System des heutigen Römischen Rechts. In the paragraph on Abstammung und Landgebiet als Gründe der Angehörigkeit der Person an ein bestimmtes Rechtsgebiet, 6 he explains that law is derived from the people as a great natural entity, and that the people find their true reality only in the state, because it is only there that the individual will is merged with the common will. Enlightenment and romanticism both have their say in this fragment. He then proceeds to explain that there are two ways of defining this community, this Volk: by Volksabstammung (nationality) and by Landgebiet. It is interesting to notice that Savigny regards the descendancy connection as typical for migrating peoples which do not even possess a specific territory. As a characteristic example in recent times, he presents the Ottoman Empire with its millet system whereby Greeks, Armenians, Jews (Sephardics excluded) and Muslims were allowed (to a certain degree) to live under their own laws, all in the same territory. In the Christian European states of his day, the Jewish Nation still demonstrated a dwindling remnant of this extraction link between person and law. Descendancy is characterized by the fact that it is invisible, and although it seems to be conceptually independent from human choices (Willkür), it is nevertheless susceptible to freely absorb individuals.
Territoriality (domicile) on the other hand, is less personal and more visible and is more susceptible to human choices (Willkür). It has, according to Von Savigny, gradually displaced and suppressed descendancy as the privileged way to define the link between a person and a legal order, that is, the nation-state. This, in turn, is caused by the vivid commerce among nations and is influenced by the mitigating force of Christianity as a common cultural element.
As Volk and Staat merge in his view, it is nearly impossible to separate nationality from the concomitant legal order. René de Groot’s adherence to the opposite idea, throughout his career, that nationality is nothing more than an empty shell, without any intrinsic legal consequences in terms of rights and duties, 7 is clearly not shared by Von Savigny. Indeed, in his last writings, de Groot states; ‘[w]e take the position that under international law nationality should also be seen as an empty concept which merely connects to certain legal consequences (…)’. He is softening up a bit by concluding: ‘[i]t may, however, be properly assumed that nationality is still perceived as the most suitable criterion on which to ground certain rights and duties’. 8
His invocation of ‘the nature of nationality’ which excludes linking nationality with an inherent set of rights and duties is not, however, fully convincing. Von Savigny as well, invoking the historical nature of legal concepts, arrives at the opposite conclusion. To my mind the emphasis laid by de Groot on the function of nationality, alongside its nature, is irreconcilable with the empty shell-notion: the function of nationality is precisely to connect and to link rights and duties. The empty shell-concept denies this function as not being part of its nature. The other side of the coin, that is the exclusionary function of nationality, would be pointless if it did not imply the denial of rights and duties to non-nationals. So far for this long-standing dogmatic and conceptual controversy that still remains between us. 9
Von Savigny was confronted with the first written codes on nationality – France (1804), Prussia (1842) – and had to deal with them. Should, according to these laws the ‘Unterthanenverhältnis’ be decisive as a connecting factor in private international law, or, as he advocated, domicile? He tried to reduce the impact of these texts by discarding the legal opinions in France on ‘droits civils’ (Article 8 of the French Civil Code (Code Civil)) as demonstrating ‘sehr verworrene und irrige Begriffe’, 10 and only accepting nationality as the connecting factor for ‘capacité’ (‘Handlungsfähigkeit’); relegating the Prussian law to the sphere of public law, and leaving room for his domiciliary approach in the area of private (international) law. 11
Savigny (the German Alsatian of French descent, residing in Berlin), in his preference for domicile as the favourite connecting factor, was confronted with the same problems as encountered by nationality: plural domicile and lack of domicile. He was firm, concerning the simultaneous existence of more than one relevant domicile, in opting for the exclusive reign of the first domicile as a connecting factor. 12 In this way a person is nailed down to the domicile of his parents; the most effective domicile, a domicile of choice, or the last domicile were options, opened up by the movements of a person through life, but were not considered by the Prussian statesman. As a conservative liberal, he opposed the idea of a codification for its immobility, preferring instead the constant development of law, but he confined persons to their infant home, thereby neglecting their later movements.
Furthermore, his death in 1861 did not go unnoticed in the Netherlands. Not many among us are aware of the fact that Savigny was elected a foreign member of the Royal Dutch Academy of Sciences. According to the Secretary of the Literary Branch, dr. H.J. Koenen, in his obituary (1862) ‘ook HH.MM. de Koning en de Koningin en ZKH de Kroonprins’ were present at the Savigny-Feier, organized by the Juristische Gesellschaft on 29 November 1861 in Berlin. Few Dutch scholars are capable of posthumously boasting of this royal honour. 13
3. Romantic era: Francois Laurent
One more historical example of the relationship between nation and nationality should be allowed: that of the Belgian (originally Luxembourg) scholar François Laurent (1810-1887) who lived a generation later than Von Savigny. He was a fully-fledged representative of the romantic school, with precise, but not exceedingly consistent ideas about the nation-state, nationality and private international law. 14 One would expect Laurent to adhere to the idea that each nation should have its own state, and that the law of nationality of that nation-state would define who belonged to that nation. He advanced the notion of one nation (people), one state, with neat demarcations and separations between the nations and their states. Furthermore, unlike Savigny, his bête noire, that ‘professeur de Berlin’ whose ideas he challenged, he adhered to the principle of nationality as prevalent connecting factor in the conflicts of law. Although they both developed ideas about a Volksgeist, that is, the individual properties of a nation, they were both children of their historicist-romantic era.
How did he define a nation? This is an important question, as the choice for nationality as a connecting factor is heavily dependent, though not exclusively, on arguments derived from the reasons as to why one belongs to a nation and to the identity of a nation. The question Qu’est-ce qu’une nation, to borrow the title of Ernest Renan’s famous essay (1882) 15 was hotly debated at the time and is still, or once again, with us. It is not easy to follow Laurent’s reasoning. Humanity, according to Laurent, is ideally divided into independent and sovereign nations; these nations in the end have one and the same mission, which they seek to accomplish each in their own specific way: ‘Les nations ont aussi leur individualité et leur mission; elles les tiennent de Dieu, comme les hommes; c’est la marque que le créateur leur a imprimée, et qui constitue leur droit à une vie séparée, libre et indépendante’. 16
God creates nations with their own finalities, and we mortal scholars are not placed to clearly see what mission God has in store for us. God moves in mysterious ways. That is Laurent’s position. This does not prevent him from trying, however. The German race is, according to his view, eminently individualistic, due to the influence of Protestantism. But he added: ‘Il faut espérer que l’unité de la patrie allemande, si glorieusement réalisée, imprimera aussi à la science une tendance plus prononcée à l’unité’. 17 My conclusion is that, according to Laurent, nations may change their identity and territory and their mission into the bargain over time.
There are disruptive and harmonizing ideas in Laurent’s works. They are disruptive insofar as he welcomes the breaking up of states that consist of various nations. There is a revolutionary element – ‘les révolutions, ces grandes manifestations de la justice divine’ – in the ideal that each nation is allowed its own state and its own territory. But, at the same time, this splitting up of multi-nation states will ultimately lead to a harmonious relationship among nations, according to God’s design.
How does a nationality law accord to his ideas about the identity of a nation? Here as well, Laurent’s position is riddled with paradoxes and contradictions. He was a staunch champion of nationality as the connecting factor, but as to the law of nationality he went beyond the French solutions at the time by propounding: ‘il faut aller plus loin et admettre le principe de territorialité à côté du principe de nationalité: les deux principes ont leur raison d’être, on doit faire à chacun sa part’. 18 ‘La nationalité se transmet avec la race’, according to Laurent, but what happens if more ‘races’ are involved? If the father is stateless, but the mother possesses a nationality, then the child inherits her nationality, 19 and, ‘L’enfant né d’un père belge et d’une mère française a deux nationalités; c’est la conséquence rigoureuse du principe de sang ou de race’. 20 Elsewhere, however, he notes: ‘Nous n’avons pas deux sangs qui coulent dans nos veines, nous n’avons qu’un; nous n’avons pas deux génies nationaux, qui feraient qu’au lieu d’être un, nous serions deux et que, divisés en nous-mêmes, nous serions un être double et contradictoire’. 21 His reasoning is hopelessly complicated by the fact that he attributes nationality not only through descent, but also through territorial elements, ius soli. He proposes to attribute nationality to those born on the territory, from the moment of their birth, with a possibility, upon attaining the age of majority, to opt for their ‘original’ nationality. In the meantime, then, they are dual nationals.
Interestingly, and somewhat confusingly, Laurent approaches naturalization in a refreshing manner. He postulates, on the basis of the principle of personal freedom, first, the right of each individual to change nationality and to migrate, and furthermore, the duty for the nations to admit these strangers into their territory as the counterpart of this individual freedom. No other conditions for this admission are allowed other than those testing the seriousness of the request: an oath, or a certain time of residence. Where has the ‘race’ gone?
Although coherence is lacking in Laurent’s theories, we see him wrestling with the same problems that we face today, although, of course, our time is confronted with new challenges. Can we attack today’s problems with the same ideological framework as that which existed 150 years ago? Can we, for instance, still think in terms of the constitution of nation-states? Is the nation-state still a useful concept?
4. Bringing nationality up to date
We are witness to a number of developments that shake the idea of a world consisting of nation-states and which naturally impacts on plural nationality.
Decolonization, state succession, secession and annexation. These phenomena have led to mass migration and have made it difficult for a number of countries to retain any idea of an ethnic or cultural homogeneous population. Ethnic cleansing engendering forced migration on the one hand, and the efforts at the accelerated creation of some sort of homogeneity (integration and assimilation), on the other, are still taking place. An example is the more or less forced decolonization of Suriname that led to an exodus of half of the Surinamese population to the European ‘motherland’, 22 causing a diversification of the Dutch population, with concomitant problems but also opportunities. The expectation, living at the time in the Netherlands government, that independence would stop the already existing migratory flows from Suriname to the Netherlands, was dashed by the proactive migration of Surinamese inhabitants with the foresight and means to pay for a flight to the Netherlands. The exodus was caused by the main provision of the succession agreement between the two countries, holding that persons domiciled at the date of the independence in either country would acquire or retain the nationality of that country; plural nationality was excluded in the agreement. In 1975, the Surinamese population in the Netherlands doubled to 100,000 people; in 1990 it accrued to 250,000, most of whom possessed the Dutch nationality by being domiciled in Europe on Independence Day, which was the 25 November 1975. 23 In 2015, some 350,000 persons of Surinamese descent were living in the Netherlands, half of them were already second generation Surinamese, born in the Netherlands.
The oncoming British secession from the EU has brought about a number of actions by citizens involved, trying to avoid the consequences of Brexit for their residence status and their Union citizenship. British citizens, especially in Northern Ireland, are availing themselves of the opportunity to acquire citizenship of the Irish Republic. Other groups of British citizens, such as British Sephardic Jews have applied for the Spanish or Portuguese nationality, 24 and other British Jews, descendants of Jewish refugees from Germany and Austria are seeking to acquire the nationalities that their ancestors possessed before they were subjected to the Zwangsausbürgerung by the Nazi-regime. Non-British EU-citizens desiring to stay in the United Kingdom, for their part, are seeking shelter by applying for the acquisition of the British citizenship alongside their previous nationality, in order to secure and maintain their residence status in the UK. As the UK allows plural citizenship, these moves depend on the position of the original Member States of the persons involved: are they forced to give up their original nationality or will plural nationality be embraced? 25 In this context it is interesting to note that the Prime Minister of the Netherlands, Mark Rutte, who had declared in July 2017 that ‘for this cabinet combatting dual nationality is still the basic principle for its policy’, made volte-face in his next government. The Coalition Agreement of the Rutte III cabinet pronounced in October 2017: ‘The cabinet prepares integrated proposals to modernize the law on nationality. It concerns an extension of the possibility of the possession of several nationalities for future first generations immigrants and emigrants.’ This turn was due to the participation of a party that has always favoured plural nationality (D66), and due to Brexit. As the Coalition Agreement stated, the government had the intention ‘to demand special attention during the Brexit negotiations for the position of Dutch nationals in the United Kingdom.’ 26
Globalization and personal mobility furthermore have increased spectacularly. The world enters our homes through the media, and we are travelling the world by many means of transport. Wars, environmental degradation (desertification), starvation and poverty bring many millions on the move, hoping to settle down in places where they aspire to be free from want and fear. Others settle down in places where they find work, and eventually take on the nationality of their habitual residence. Mobility inevitably creates plural nationality, where this is permitted by the state of origin and the host state.
Additionally, subjects are now becoming citizens, fountains of sovereignty. Accordingly, the legitimate interests of individuals are to be taken into account when shaping nationality law, as is laid down in the Preamble to the European Convention on nationality. 27 Belonging to a group therefore becomes an individual choice.
Equality between the sexes is one of the greatest contributors to plural nationality. The self-evident idea of the reign of only one nationality in the family, that one nationality being the husband’s, has succumbed to the emancipation of wives, claiming their own, independent, nationality of origin. The next step was the ability of mothers to transmit their nationality to their children on the same footing as their husbands. Even in countries that oppose plural nationality when it comes to naturalization, this equality of sexes has become such a paramount value that it is nowadays responsible for a considerable increase in the number of plural nationals by birth. This tenet is untouched by the ongoing discussions on the pros and cons of plural nationality, a debate that focuses primarily on newcomers and expats. Gender equality and equality between partners prevails over other policy considerations that have been put forward, such as the unity of the family in respect of nationality, and the ‘natural’ priority to the man’s and father’s nationality above that of the mother. 28
I may dwell for a moment on the developments that are present in the Netherlands. As for gender equality, three stages must be distinguished in the Netherlands as elsewhere. In the Act of 1892, a unitary principle prevailed: male superiority transformed affection into subjection of the wife who was supposed by her choice of a foreign husband to choose his nationality into the bargain. This patrilineal arrangement, which guaranteed that children would possess the same nationality as their parents, suffered, in a second phase, as gradual inroads gave the wife, in various modalities, the right to voluntarily acquire the husband’s nationality instead of being subjected to a legal fiction. Full legal capacity for married women was only achieved in 1956, and this has resulted, since 1964, in the situation that foreign women, marrying a Dutchman, could opt for his nationality, whereas Dutch women, marrying a foreigner did not automatically lose their nationality anymore, but could renounce it after acquiring the husband’s foreign nationality. As from the new Act on Nationality of 1985, a third phase was introduced in which full equality of the sexes was realized in symmetrical positions: they could both acquire, through naturalization, the partner’s Dutch nationality, and transmit their nationality to their children, an important source of plural nationality. 29 The same goes for registered partners of whatever sex, both for registered partnerships contracted in the Netherlands and for registered partnerships entered into abroad, provided that the (foreign type of) partnership is recognized in the Netherlands. 30
Another important development concerns the relation between the citizen and the state. There are signs of a shift in perspective to be registered. Persons belonging to a state emancipate themselves from Untertanen to citizens whose fate is not unilaterally decided by the state. Room is made in nationality laws for the interests and wishes of the individual, and less room is made for state interests. Persons may define themselves as belonging to more than one society or state. The identity of an individual is therefore fast becoming an evaporating concept or rather a complex and multifaceted entity that changes according to the context in which the term is used over the course of time. Defining power rests not only with the state but with individuals as well.
Most of these phenomena and tendencies make it difficult to uphold the idea of an ethnic and culturally monolithic and homogeneous nation, living happily and for ever on one and the same territory. Part of the nation lives abroad, and in patria many newcomers live without acquiring the nationality of the state of domicile or having more than one nationality. Any definition of the nation as an ethnic or culturally homogeneous group has become diluted, and shows rifts and tensions in reality. 31 At least in Europe, although there as well, a resurge of nationalism desperately tends to define people in terms of ethnic and cultural identities.
A case in point is the decision of the German Federal Constitutional Court (Bundesverfassungsgericht) of 17 January 2017. 32 The application to prohibit the National Democratic Party of Germany (NPD) was dismissed, because it appeared to be entirely impossible that this party would succeed in achieving its aims by parliamentary or extra-parliamentary democratic means. The aims, however, are in clear violation of Germany’s free democratic basic order. The aims violate human dignity insofar as they exclude all persons not belonging to the ethnical definition of the ‘Volksgemeinschaft’, and disrespect the free democratic basic order as they define a national state by the ‘unity of nation and state’ and thus this leaves no room for non-ethnic Germans to take part in the process of developing an informed political opinion. Concepts aimed at racist discrimination are incompatible with constitutional enshrined notion of human dignity. The NPD’s nature, furthermore, resembles that of National Socialism. According to the Court, its concept of the Volksgemeinschaft, its fundamentally anti-Semitic attitude and its contempt of the existing democratic order show clear parallels to National Socialism and by that token its disrespect for the free democratic basic order. The German Federal Constitutional Court is clearly steering away from any form of an ethno-cultural definition of those who belong by nationality or domicile to Germany.
25 Years earlier Rogers Brubaker wrote: ‘[t]he availability of a supply of ethnic German immigrants, legally privileged and socially preferred to non-Germans, has revealed the marked ethnocultural inflection in the contemporary German politics of immigration and citizenship’. 33 Although the German Federal Constitutional Court dissociates itself from these ethnic definitions of the nation, as was diagnosed by Rogers Brubaker, remnants are still visible in the German law of nationality, especially Article 116 of the German Basic Law (Grundgesetz).
Elsewhere, for example, in China, the picture is somewhat different. The definition of the people who ‘belong’ to China is predominantly ethnic: the ‘real’ Chinese are Han of which 1.2 billion live in the mainland. Ethnic minorities, numbering around 110 million, although possessing the Chinese nationality are considered to be second class citizens. People of Han Chinese descent, even if they possess foreign nationalities, are still defined as Chinese, with concomitant jurisdictional claims by China over their doings. In line with this strongly ethnic definition of Chinese nationality, the number of naturalizations in China is negligible, and plural nationality is not tolerated. Regardless of whether or not the Chinese have acquired another nationality, the Republic of China continues to wield its powers and claims upon them. 34
Nevertheless, the long term shift, at least in Europe, is towards civic nationality: we adhere to what is still called a nation, if we subscribe to a number of civic postulates. In our continent, the rule of law, democracy and fundamental rights are key tenets. Nations become populations or peoples. Tribes transform into clubs. 35 States shed their national feathers. The nation-state is defunct in all but name, although, in some countries, it survives or even reinforces itself as a nostalgic utopia in a world that is fearful of transition.
5. Plural nationality and problematic anti-terrorist measures
It is appropriate to mention that plural nationality engenders problems as well. The nationalities a person holds are not always treated on an equal footing. We are accustomed to dealing with plural nationality in private international law where nationality is used as a connecting factor. In this area, mostly sound solutions have been developed, ranging from selecting the most effective or the strongest nationality, through abandoning the nationality criterion and jumping to domicile as connecting factor, in order to indicate the nationality of the place of the forum (the municipal origin of the conflicts rule) or leaving a choice to the person involved, as is the case concerning the form of wills under the provisions of the Hague Convention. 36
There are, however, pockets where plural nationality is regarded as more problematic, and for which international agreements have been developed to deal therewith. Military obligations are a case in point. Diplomatic protection is another. 37
Here, I would like to present another area of friction: anti-terrorist legislation and dual nationality. Again, Dutch legislative endeavours will be taken as an example. Over the last decade, the Dutch Nationality Act has seen the introduction of a number of new provisions, all dealing with the loss of the Dutch nationality as a means of dealing with terrorism. One condition still stands firm, however: no withdrawal by the Minister of Justice is allowed if this would lead to statelessness. 38 Plural nationality of the person involved is a precondition for the loss of Dutch nationality; single national Dutch persons are allowed to retain their nationality, however atrocious their deeds may be. This difference in treatment has repeatedly led to questions in Parliament and even in the Council of Europe 39 about the discriminatory character of these provisions. Concerning the revocation of nationality, according to the latest member of the family of antiterrorist legislation, the Commissioner states: ‘(…) such revocation should occur in a manner that (…) is non–discriminatory on, inter alia, religious or ethnic origin grounds. The principle of non-discrimination also applies to distinctions between nationals such as those who have acquired nationality by birth and those who have acquired it later (…). However, the most recently available data from the Central Bureau of Statistics show that half of all persons with dual nationality hold, in addition to Dutch citizenship, the nationality of only two countries: Morocco and Turkey. These groups are thus likely to be, de facto, primarily affected by the Bill than others.’
The Dutch government answered as follows: (…) the distinction between persons with a single nationality and those with multiple nationalities is not new and derives from the Netherlands’ treaty obligation to prevent statelessness. At the same time, it is permitted under the European Convention on Nationality to provide for loss of nationality in the event of conduct seriously prejudicial to the vital interests of the state party (…). The Netherlands is making use of this option.
40
The point I want to make in his context is that the bond of nationality of persons holding dual nationality is weakened when compared to nationals who possess only one nationality. Single nationals cannot be deprived of their nationality, and are allowed to leave and enter their country, whereas dual nationals may be stripped of one of their nationalities and are banished from the country where they were born, raised and lived. In the case of persons holding the Moroccan nationality, such measures are even more incisive as they are not permitted to shed their Moroccan nationality, and they may have to migrate to a country with which have only very thin ties. The ‘foreign terrorist fighters’ as they are called in U.N. documents 44 are foreign to the country to which they may have access, born and educated as they are in the Netherlands, being children or even grandchildren of labour migrants from Morocco. The bond, the genuine link with the Netherlands, is unilaterally broken by the state, weakening by that token the concept of nationality itself, which is also the case for monopatride nationals.
6. Union citizenship presupposes union nationality
I come back to the inevitability and even normality of plural nationality. By way of illustration an excursion to the European Union and its relation to the nationality of Member States seems appropriate. 45 And I will come up with a far-fetched idea.
As we all know, holding the nationality of a Member State makes one a citizen of the EU. 46 Mysteriously, Article 20 TFEU adds in its English version: ‘Citizenship of the Union shall be additional to and not replace national citizenship’. The addition is clear: there are two citizenships involved. But what does citizenship mean in this context? Is it nationality, or is it citizenship? Consulting other versions of the TFEU one quickly comes to the conclusion that citizenship is used here not as a synonym of nationality, but of ‘burgerschap’, ‘citoyenneté’, ‘ciudadanía’ or ‘Bürgerschaft’, although the ambiguous Italian version, ‘cittadinanza’ may give rise to some doubt. 47
But there is more to it. Let me start out by saying that it is obviously the case that one can be a citizen – citoyen - of more than one legal order. That is already the case for persons holding more than one nationality. They may exercise several rights and are subject to a number of duties and obligations in the states of which they hold the nationality. But in the system established by the EU, all nationals of the Member States are citizens not only in the state of which they hold the nationality, but in the EU legal order and in the territories of the EU Member States as well. They are dual citizens, notwithstanding the fact they hold but one nationality. 48
In other words, if a Member State attributes its nationality to a person through its law on nationality, it creates by that token dual citizenship: one for national purposes, and one for functioning within the EU legal order. Is it bold to say that the national legislator, the national judiciary, the national governmental institutions framing and implementing the municipal provisions on nationality operate, at the same time, as organs of the EU in creating and upholding Union citizenship? National legal orders are intertwined with the legal order of the EU; the body of law of the EU is not a corpus alienum in the national legal order but forms part and parcel thereof: it permeates the Member States’ respective legal orders.
And now the novelty. I refer to the theory of Georges Scelle (1878-1961) which I will revive and bring into play. He urged already – in vain – in the 1920s for an ‘Union Européenne’ as a means to avoid another world war. 49 But he is best known for his theory on what he called dédoublement fonctionnel (Role Splitting). In essence his idea concerns the double role of national institutional organs and agents: internally they uphold the national legal order, but they act at the same time for the international community whenever international elements are involved. They supplant the lacking effectivity of international law by their efforts and exploits. According to my colleague and nevertheless friend, the late international lawyer Antonio Cassese, ‘Scelle’s perspectives have an enormous potential for explaining the phenomenon of the European Community in the context of international law’. 50 As a matter of fact, Scelle’s theory is part description and partly a model for helping to explain the development of international law. Nino Cassese emphasizes the fact that national agents, operating in the sphere of the European Union, operate in fact as ‘double agents’, upholding the European legal order alongside their own. This is the case not only for the judiciaries that have to apply European law in their everyday practice, but is also true for the national law-making agencies. They introduce and implement European rules into the national legal order and enact legislation that is compliant with European principles. Here ends Cassese, and starts my venture.
I draw the conclusion that Member States’ laws of nationality, in attributing nationality to individuals, seen in the perspective of the theory of role splitting, attribute not only Union citizenship but European nationality to those individuals as well, with Union citizenship depending from it. Nationality of a Member State is at the same time nationality of the Union, bringing Union citizenship with it. The Union nationality is the missing link, a virtual and parallel albeit necessary link between a person and Union Citizenship.
It may be the case that there is no European ‘nation’ or demos. But one can still say: civis Europaeus sum. The word ‘nationality’ must not deceive us. The terms ‘Angehörigkeit’ or ‘cittadinanza’, ‘ressortissant’ are better descriptions of the idea that there is a formal link to a specific legal order. Union citizenship presupposes the ‘Angehörigkeit’ to the legal order of the EU, and this status is brought about by the parallel and virtual ‘nationality’ that is created by the Member States. All Member States thus create dual nationality - their own and a shadow European nationality -, with dual citizenship of both legal orders acting as corollaries.
Georges Scelle’s model elucidates and explains what happens in relation to the legal status of the nationals of Member States. For instance, the significance and meaning of the unilateral declarations of some Member States about whom are to be considered as their ‘nationals’ in the context of the European Union. 51 These declarations show the awareness of Member States that granting their nationality implies granting persons the status of Union citizen, and show their desire to differentiate between the two nationalities: a person may be a national of a Member State and still be denied the status of Union citizen, and vice versa be included in Union citizenship despite not being a national of a Member State. 52 Certainly, most Member States do not make any distinction between nationals according to their municipal legislation and nationals for the purposes of the EU, but they are allowed to do so, and some Member States indeed have made this perspective clear in declarations to the EU which stipulate their desire to make distinctions. 53
The existence of these two nationalities explains the fact that citizenship of a Member State differs from the citizenship of the European Union, which encompasses a smaller and less far-reaching bundle of rights and duties. Its shape has different dimensions as well.
Awareness of the existence of the EU is also shown directly in municipal nationality legislation. As an example, I take the provision from the Dutch law on nationality that attaches loss of Dutch nationality to living more than ten years abroad, that is, outside of the Netherlands and the territories where European Union treaties apply. 54 This implies that the Netherlands still considers that there exists a genuine link with the Netherlands if a Dutch national is established elsewhere in a Member State of the EU. At the same time, it indicates that Dutch nationality law on the loss of nationality may not hamper the free movement of citizens of the Union. 55 Another example is provided for in several Member State’s legislations concerning the condition that one must give up one’s previous nationality upon naturalization: whenever the original nationality is that of one of the other Member States, then this condition is waived. 56 As Union citizenship gives nationals of the Member States citizenship rights in all the other Member States on nearly the same footing as their own nationals, it is less and less effective to deprive them of their original nationality. 57 Or rather, the nationality of another Member State is not seen as foreign or alien.
There are, furthermore, certain rights, accorded by the Treaties to Union citizens, which are nevertheless available to non-nationals. A case in point is that of Gibraltarians. Gibraltar is currently a British Crown Colony, and does not form part of the United Kingdom. However, according to the 1982 Declaration by the United Kingdom, ‘British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar’ are to be considered by the other Member States and the EU as nationals of the United Kingdom. 58
The European Union, in turn, is aware of the European implications of the law of nationality of Member States as well, and acts accordingly. Starting 25 years ago, with Micheletti, 59 the Court of Justice of the European Union (CJEU) urged Member States to design and apply their laws on nationality ‘with due regard to European law’. In passing I remark that Micheletti, a dual Argentinean/Italian national, was considered by the CJEU as Member State national and by that token a European citizen, although his links with Italy were possibly genuine but virtually non-existent. In 2010, Rottmann 60 introduced for the first time a specific principle of Union law to be upheld by national provisions pertaining to the loss of nationality. More principles may follow, and the rules of acquisition may come under scrutiny as well. Union citizenship is considered by the CJEU as the ‘fundamental status’. If this is the case, the dédoublement fonctionnel may go both ways: not only will the legislators of Member States act as agents for the EU, but the EU may intervene in national legislation on nationality of the Member States as well. This explains the Rottmann decision, inasmuch as it is nudging national legislators to comply with an indefinite number of exigencies of Union law. It also explains the mistaken interventions by EU institutions such as the European Parliament and the Commission to thwart Malta’s intentions to bring investors in by offering them the Maltese nationality in return for consideration. 61
For the time being, dual citizenship in the EU implies dual ‘nationality’. There may come a time when domicile will count as basis for Union citizenship, alongside nationality. The links between the Union and persons may then be investigated anew. I hope to see that day.
And here I end this essay in honour of my dear friend René. It is loosely knit around the idea that dual nationality is normal. I offer him these lines in his threefold capacity as my pupil, my colleague and my teacher for more than forty-five years.
Footnotes
Author note
(Hans Ulrich Jessurun d’Oliveira (1933) is professor emeritus at the Universities of Groningen, Amsterdam and the European University Institute (Florence). He taught private international law, comparative law, philosophy of law, European law and migration law.