Once again: Plural nationality
| Author | Hans Ulrich Jessurun d’Oliveira |
| Published date | 01 February 2018 |
| Date | 01 February 2018 |
| DOI | http://doi.org/10.1177/1023263X17754020 |
| Subject Matter | Articles |
Article
Once again: Plural nationality
Hans Ulrich Jessurun d’Oliveira*
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 d´
edoublement 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.
Keywords
Plural nationality, union citizenship, d´
edoublement fonctionnel, Brexit, antiterrorist measures
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 sup-
pressed? And finally, which relations exist between the shape of nationality laws and the under-
lying ideas about the identity of nations or communities within states? These, and many more
* University of Amsterdam,The Netherlands; European University Institute, Florence, Italy
Corresponding author:
Hans Ulrich Jessurun d’Oliveira, University of Amsterdam, The Netherlands.
E-mail: hudo@xs4all.nl
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(1) 22–37
ªThe Author(s) 2018
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DOI: 10.1177/1023263X17754020
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questions, are currently being asked, and Ren´e 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 wha t 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
1. This essay is an expanded version of my contribution to the Farewell Seminar, The Future of Nationality Law, for
Gerard-Ren´e de Groot, Maastricht 13-14 October 2016. See for a number of his contributions to the theme of plural
nationality: G.-R. de Groot and O.W. Vonk, International Standards on Nationality Law. Texts, Cases and Materials
(Wolf Legal Publishers, 2016), p. 68.
2. European Convention on Nationality, Strasbourg, 6.XI.1997, CETS No. 166.
3. ICJ, Liechtenstein v. Guatemala (Nottebohm Case) (second phase), Judgment of 6 April 1955, ICJ Reports, 1955, p.4.
4. It seems to me that the drafters had no intention of wholeheartedly embracing the Nottebohm decision. The decision is
indeed outdated. In the context of this article, it may be remarked that the decision suggests that mono-nationality is the
only possible manifestation of the required ‘genuine connection’, where it is stated that ‘(nationality constitutes) the
juridical expression of the fact that the individual upon whom it is conferred (...) is in fact more closelyconnected with
the population of the State conferring nationality than any other State’ (ibid., p. 23). This would exclude almost all forms
of plural nationality as these cannot show this ‘more close’ connection at the same time. More realistically, Article 7 of
the 2006 draft articles of the International Law Commission on diplomatic protection stipulate that, ‘[a] State of
nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a
national unless the nationality of the former State is predominant, both at the time of the injury and at the date of the
official presentation of the claim’. See, International Law Commission, ‘Draft Articles on Diplomatic Protection’, ILC
(2006), http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_8_2006.pdf. Compare H.U. Jessurun d’Oli-
veira, ‘Nationaliteit en diplomatieke bescherming: een update, een vooruitzicht’, in T.M. de Boer et al. (eds.),
d’Oliveira 23
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