The European Convention on Nationality: A Step towards a Ius Commune in the Field of Nationality Law
| Author | Gerard-René de Groot |
| DOI | 10.1177/1023263X0000700202 |
| Date | 01 June 2000 |
| Published date | 01 June 2000 |
| Subject Matter | Article |
Gerard-Rene
de Groot *
The European Convention on Nationality: a step towards a
ius
commune
in the field
of
nationality law
§1. Introductory remarks
On 6 November 1997 a remarkable convention was signed in Strasbourg: the European
Convention on Nationality. 1The Convention was initiated by the Council of Europe,
which has been active in the field of nationality law for more than three decades. An
important result
of
these activities is the Convention on the Reduction
of
Cases
of
Multiple Nationality and Military Obligations
in
Cases
of
Multiple Nationality, signed
in
Strasbourg on 6 May 1963 2(hereinafter referred to as 'the 1963 Convention'), and
its three Protocols. 3Furthermore several resolutions in the field
of
nationality law
were adopted by institutions
of
the Council
of
Europe. 4
Of
particular interest are the
Resolutions
of
the Committee
of
Ministers
of
1977 on the nationality
of
spouses
of
different nationalities and
on
the nationality of children
born
in wedlock and the
Assembly Recommendation of 1988 on problems of nationality
in
mixed marriages.
Resolution (77) 12 recommended that governments take steps to ensure that foreign
spouses
of
nationals can acquire the nationality of the spouse on more favourable terms
than those generally required of aliens and that governments eliminate distinctions
between foreign husbands and foreign wives as regards the acquisition
of
nationality.
Resolution (77) 13 recommended that governments facilitate the acquisition
of
nationality by children
born
in wedlock
if
one
of
the parents is a national.
Recommendation 1081 (1988) noted that it was desirable for each
of
the spouses
of
a
mixed marriage to have the right to acquire the nationality
of
the other without losing
*
1.
2.
3.
4.
Professor of Comparative Law and Private International Law, Maastricht University.
European Treaties Series No. 166; Tractatenblad 1998, 10 (English and French version) and Tracta-
tenblad 1998, 149 (Dutch translation).
European Treaties Series No. 43; United Nations Treaty Series 634, 221.
See European Treaties Series No. 95; European Treaties Series No. 96 and European Treaties Series
No. 149.
See Gerard-Rene de Groot, Nationaliteitswetgeving ;
(W.EJ.
Tjeenk Willink, 1994),420-462.
7MJ 2 (2000) 117
IThe European Convention on Nationality
the nationality
of
origin. Furthermore, children
born
of
mixed marriages should also be
entitled to acquire andkeep the nationality
of
both their parents.
The main goal
of
the 1963 Convention was the reduction
of
multiple nationality. Art.
1 of that Convention determined that a national of a Contracting State who voluntarily
acquires the nationality
of
another Contracting State loses his previous nationality by
operation
of
law. In spite
of
the 1963 Convention, cases
of
multiple nationality have
increased enormously since the seventies. This was mainly the result
of
different
European States trying to realize the principle of equal treatment of men and women
in
their nationality legislation. As a consequence the rules on acquisition
of
nationality
were modified in order to give women the same possibilities as men to transmit their
nationality to their children. The fact that, on the one hand, multiple nationality was
placed on the blacklist as something to be avoided as often as possible,
but
that, on the
other hand, multiple nationality was accepted (and even supported by the
aforementioned Recommendation 1081 (1988) of the Assembly
of
the Council
of
Europe) as a consequence
of
mixed marriages, andwas one reason for initiating new
discussions
on
the desirability
of
avoiding cases
of
multiple nationality.
There were also additional incentives for a new discussion on the subject of multiple
nationality, at least for some States. Since the end
of
the fifties many migrant workers
have moved from the southern European States to northern Europe for work. Originally
the northern European Countries expected that the migrants would return to their home
countries after a couple
of
years. But after several decades it became obvious that most
migrant workers andtheir families would not return to their countries
of
origin,
but
had
settled permanently in northern Europe. Many
of
these migrants wanted to integrate
completely in their countries
of
residence and acquire the nationality
of
the country
involved,
but
were often reluctant to lose the nationality which linked them with their
countries
of
origin, respectively the countries of origin of their parents or even
grandparents.
From
the perspective
of
the countries of residence, the nationality
integration
of
the increasing number
of
permanent residing aliens was also a very
serious concern. After long negotiations
in
Strasbourg, on 2 February 1993 a Second
Protocol to the 1963 Convention was finally opened for signature." This second
Protocol amended the main principle of Art. 1 of the 1963 Convention. Voluntary
acquisition
of
aforeign nationality would not
necessarily
cause the loss
of
the previous
nationality,
if
a national acquires the nationality
of
another Contracting Party on whose territory
he either was born and is resident, or
has
been ordinarily resident for a period of
time beginning before the age
of
18;
a spouse acquires the nationality
of
the other spouse
of
his or her
own
free will;
5. European Treaties Series No. 149.
118 7 MJ 2 (2000)
IGerard-Rene de Groot
aminor whose parents are nationals of different Contracting Parties acquires the
nationality
of
one
of
his or her parents.
Three Contracting States
of
the 1963 Convention have ratified this Second Protocol in
the past few years: France, Italy and the Netherlands. 6Art. 1 of the 1963 Convention
is no longer operative between these countries for the categories mentioned in the
Protocol. Because the French and Italian nationality statutes do not mention voluntary
acquisition
of
aforeign nationality as a ground for loss
of
nationality, French andItalian
nationals belonging to the categories mentioned in the second Protocol may acquire the
nationality
of
another country which has ratified the Second Protocol without losing
their original nationality. Dutch nationals 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. The Dutch nationality statute in force still mentions
in
Art. 15 (a) voluntary acquisition
of
a foreign nationality as a ground for loss
of
Dutch
nationality. Therefore,
in
cases covered by the second Protocol, a Dutch national who
acquires French or Italian nationality no longer loses Netherlands nationality because
of
the operation
of
Art. 1 of the 1963 Convention,
but
because of the provision
of
Art.
15 (c)
of
the nationality statute. A bill amending,
inter
alia,
Art. 15 is pending before
parliament. 1
During the meetings of the experts delegated by the Member States of the Council of
Europe 8to negotiate on exceptions to the principles of the 1963 Convention, the
proposal was made to attempt to draft a Convention on the general principles
of
nationality. 9The creation of such a new Convention was considered particularly
desirable in order to provide some basic standards in the field of nationality for the new
democracies
born
in
Eastern Europe since 1989, and also to realize some harmonization
of the grounds for acquisition and loss of nationality in the different European States.
Important issues addressed by the new Convention are the avoidance of statelessness and
the legal position
of
aliens living habitually on the territory
of
a state. According to the
preamble to the new Convention the right to respect for family life and the non-discrim-
6. 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 have
been
bound by the
Protocol since the 20 August 1996. See Tractatenblad 1994, 265 and 1996, 201.
7. Bill 25 891 (R 1609).
8. The Committee involved was first called the Committee
of
Experts on Multiple Nationality '(CJ-PL),
but later renamed the Committee
of
Experts on Nationality (CJ-NA).
9. After a feasibility study the CJ-NA started to prepare a draft text
of
aconvention in November 1993.
Hans Ulrich Jessurun d'Oliveira,
'Ret
Europees Verdrag Inzak.eNationaliteit van 6 november 1997',
in R. U. Jessurun d'Oliveira (ed.),
Trends
in het Nationaliteitsrecht, (Sdu, 1998), 8, mentions that the
history
of
the new convention actually began earlier with attempts being made to add a Treaty on
nationality as an additional protocol to the European Convention on Human Rights as
of
1988.
7MJ 2 (2000) 119
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