Conditions for Acquisition of Nationality by Operation of Law or by Lodging a Declaration of Option
| Published date | 01 June 2002 |
| Date | 01 June 2002 |
| DOI | 10.1177/1023263X0200900202 |
| Author | G.R. de Groot |
| Subject Matter | Article |
G.R. de Groot∗
9 MJ 2 (2002) 121
Conditions for Acquisition of Nationality by Operation of
Law or by Lodging a Declaration of Option1
§ 1. Introductory Remarks
The object of this contribution is to provide an inventory of the rules regarding the
acquisition of the nationality of a state. Nationality should indicate a genuine link
between a state and a person.2 Therefore the nationality law of a state gives rules which
determine the conditions under which that state’s nationality is attributed to a person
who is deemed to have a genuine link to it. Furthermore, rules are given that set out the
conditions that must be fulfilled to acquire a state’s nationality on the basis that the
person involved has built up a link with the state. Finally, rules are given on the loss of
nationality.
In § 2 a comparative description of the grounds for the acquisition of a nationality by
operation of the law will be given. § 3 will describe which categories of persons are
entitled to acquire a nationality by lodging a declaration of option. In this paper,
prepared for the Second Conference on Nationality initiated by the Council of Europe,
no attention will be given to the possibility of acquisition of nationality by
* Professor of Comparative Law and Private International Law at the University of Maastricht.
1. This paper is a slightly updated version of a paper presented by the author by invitation of the Council of
Europe during the 2nd European Conference on Nationality (Strasbourg, 8-9 October 2001) on
‘Challenges to National and International Law on Nationality at the Beginning of the New Millennium’. A
French version of the paper was distributed under the title ‘Conditions d’acquisition de la nationalité ex
lege ou par déclaration d’option’. The conclusions of the 2nd European Conference on Nationality are
added to this publication in Annex 1.
2. Compare the Nottebohm decision ICJ Reports 1955, 4 (23); Fontes iuris gentium, Series A, sectio 1,
tomus 5, 81.
Conditions for acquisition of nationality
122 9 MJ 2 (2002)
naturalization.3 Nor, in principle, will the grounds for the loss of nationality be
addressed in this contribution.4
It is useful to describe the rules on the acquisition of a nationality by operation of law,
and the cases where a nationality can be acquired by declaration of option, for several
reasons. First of all, it provides a foundation for the elaboration of ideas on desirable
grounds for attribution of nationality and on regulations which give some categories of
foreigners the possibility to acquire the nationality in a way other than by naturalization
because it is very likely that they have (built up) a significant link with the state
involved.
To develop such ideas is appropriate in view of art. 15 (1) of the Universal Declaration
of Human Rights5 which lays down that everybody is entitled to a nationality, however
it does not indicate the conditions which entitle a person to a certain nationality. It is
therefore attractive to study the similarities and differences between the various rules on
acquisition of nationality in order to develop recommendations on rules for acquisition
of nationality. It has to be stressed that up to now only a few international documents
exist with a couple of concrete rules on acquisition of nationality. The most elaborate
provision can be found in art. 6 of the European Convention on Nationality (Strasbourg
6 November 1997 – hereinafter the ECN),6 but even the rules of that provision have – in
part – a quite general character.7 Due to the modest number of provisions dealing with
the acquisition of nationality in international instruments and the fact that these rules are
not very detailed, the rules on the acquisition of nationality in the various States differ
remarkably.
Furthermore, knowledge of the rules on acquisition of nationality is essential to be able
to compare and discuss rules on naturalization in a comparative perspective, particularly
statistics on naturalization. It is obvious that rules on naturalization are superfluous for
3. Another paper prepared for the 2nd European Conference on Nationality by Andrew Walmsley (‘The
acquisition of nationality through naturalization; An assessment of European legislation’) is completely
devoted to that way of acquiring nationality, describing the conditions which have to be fulfilled in order
to qualify for naturalization. In Walmsley’s contribution attention is paid also to categories of persons who
enjoy a privileged position in the case of application for naturalization because some of the normal
conditions do not apply to them.
4. See for a comparative inventory in comparison with the provisions of Art. 7 and 8 European convention
on nationality my report ‘Loss of nationality’ for the German Marshall Fund Project on Dual Nationality
(1999/2000), which will be published in David A. Martin and Kay Hailbronner, Rights and Duties of Dual
Nationals: Evolution and Prospects, (Kluwer Law International, 2002), chapter 2.
5. 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-
Hélène Marescaux, ‘Nationalité et statut personnel dans les instruments des Nations Unies’, in Michel
Verwilghen, Nationalité et statut personnel, (Bruylant, 1984), 18-24.
6. European Treaties Series No. 166.
7. See Gerard-René de Groot, ‘The European convention on nationality, a step towards a ius commune in the
field of nationality law’, 7 Maastricht Journal of European and Comparative Law 2 (2000), 117.
Gerard-René de Groot
9 MJ 2 (2002) 123
those categories of persons who already acquire the nationality of a country ex lege or
can acquire this nationality by declaration of option.
A justification for the choice of jurisdictions included in this study is necessary.
Considering that this paper was intended for the second conference on nationality law of
the Council of Europe, an attempt is made to include a considerable number of the
jurisdictions of the Council’s member states. Because of the availability of materials in
languages which could be read by the author the research was restricted to the Member
States of the European Union and the European Economic Area. Furthermore
information is included on the nationality legislation of Hungary, Moldova and
Slovakia, because these States already ratified (as did Austria, the Netherlands, Portugal
and Sweden) the ECN. Finally, some data in respect to the nationality legislation of
some candidate member states of the European Union were added. Of course the
information will focus on the main issues. Many details had to be omitted, due to the
permitted maximum size of this paper.
In this article, references to the different jurisdictions’ legislation are made by using
abbreviations. For example, ‘15 (1) (b) NET’ refers to ‘art. 15 paragraph 1, lit. b of the
Nationality Act8 of the Netherlands’. In order to indicate the nationality legislation of
the different countries the following abbreviations are used:9 AUS = Austria; BEL =
Belgium; CZE = Czech Republic; DEN = Denmark; EST = Estonia; FIN = Finland;
FRA = France; GER = Germany; GRE = Greece; HUN = Hungary; ICE = Iceland; IRE
= Ireland; ITA = Italy; LUX = Luxembourg; MOL = Moldova; NET = Netherlands;
NOR = Norway; POR = Portugal; POL = Poland; SLK = Slovakia; SLN = Slovenia;
SPA = Spain; SWE = Sweden; SWI = Switzerland; UK = United Kingdom.
Of course, in principle, references are made to the legislation in force in the various
countries. An exception is made for the Netherlands where, if the contrary is not
indicated, references to the nationality statute include the modifications which will
come in force in 2003.10 In respect of Polish nationality law, references are made to the
bill on Polish nationality (o obywatelstwie polskim) which was pending in parliament in
1999/2000.11 A list of relevant nationality statutes of the States included in this report is
given in Annex 2.
Of course, I realize that it is likely that some references are not completely up-to-date
due to the rapid legislative developments in the field of nationality law in the various
countries. Furthermore, because of the complexity of many details of nationality
8. This abbreviation is also used for countries where the nationality p rovisions are included in the civil code,
such as France and Spain.
9. These abbreviations correspond with those used in the European Bulletin on Nationality (English edition).
10. Rijkswet (Kingdom Statute) of 21 December 2000, Staatsblad 618.
11. This bill was finally not accepted by the Senate. A new draft is under preparation.
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