Nationality Law in the Western Hemisphere : A Study on Grounds for Acquisition and Loss of Citizenship in the Americas and the Caribbean [1 ed.] 9789004276413, 9789004276406

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Nationality Law in the Western Hemisphere

Nationality Law in the Western Hemisphere A Study on Grounds for Acquisition and Loss of Citizenship in the Americas and the Caribbean

By

Olivier Vonk

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Vonk, Olivier W. author.  Nationality law in the western hemisphere : a study on grounds for acquisition and loss of citizenship in the Americas and the Caribbean / by Olivier Vonk.   pages cm  Includes bibliographical references and index.  ISBN 978-90-04-27640-6 (hardback : alk. paper) -- ISBN 978-90-04-27641-3 (e-book) 1. Emigration and immigration law--America. 2. Naturalization--America. 3. Citizenship, Loss of--America. I. Title.  KDZ561.V66 2014  342.708’3--dc23                         2014032463

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. isbn 978-90-04-27640-6 (hardback) isbn 978-90-04-27641-3 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Acknowledgments vii List of Abbreviations ix Map of the Western Hemisphere xi

Part 1 Nationality Law in the Western Hemisphere: Setting the Scene 1 Introduction to Part 1 3 1.1 General Introduction 3 1.2 Observations on Matters of Terminology and Definition in Nationality Law 24 1.3 On the Nationality Legislation of the Two Major Former Colonial Powers in the Western Hemisphere: Britain and Spain 30 2 Non-Sovereign Caribbean Territories that Belong to Britain, France, the Netherlands, or the United States 35 3 Key Observations from the Nationality Law-related Case Law of the Inter-American Court of Human Rights 46 4 On Modes of Acquisition and Loss of Nationality The European Union Democracy Observatory on Citizenship Typology 52

PART 2 Grounds for Acquisition and Loss of Citizenship in the Independent Nation-States of the Western Hemisphere 5

Introduction to the Country Analyses 69 Antigua and Barbuda (A&B) 74 Argentina 83 Bahamas 93 Barbados 103 Belize 110 Bolivia 118

vi

Contents 

Brazil 124 C anada 135 C hile 150 C olombia 160 C osta Rica 170 C uba 178 D ominica 186 Dominican Republic (dr) 195 E cuador 207 E l Salvador 214 G renada 221 G uatemala 230 G uyana 239 H aiti 247 H onduras 255 J amaica 263 M exico 271 N icaragua 281 P anama 289 P araguay 297 P eru 304 Saint Kitts and Nevis 312 S aint Lucia 320 Saint Vincent and the Grenadines 328 S urinam 336 Trinidad and Tobago (t&t) 345 United States of America 353 U ruguay 367 V enezuela 374 6 Comparative Conclusions by Individual Mode of Acquisition and Mode of Loss of Citizenship 384 Bibliography 401 Index 412

Acknowledgments I am indebted to many people and institutions for making this book possible. My first thanks go to the European Commission for generously funding my various research projects on nationality law in the Western Hemisphere. As a Marie Curie Fellow at Maastricht University and a visiting researcher at Georgetown University, I was able to investigate and experience many things first hand – be it in the United States or on trips to Mexico City and the Caribbean. Before starting any long-term project, it is always uncertain what the final result will look like. Let me therefore say that the possibility to travel so widely in the American Hemisphere for two years not only brought the region alive for me in ways I could not have anticipated, changing my original ideas along the way, but also frequently provided the impetus for further legal or historical research. I will be forever grateful for being given the opportunity to spend such an extended period in the Americas. My thanks also go to Susan Martin, director of the Institute for the Study of International Migration (isim) at Georgetown University, for kindly allowing me to spend two years at the Institute and use it as a base from which to explore the region. I thank Elzbieta, Lindsay, Shirley, Lex, Sanjula, Abbie, and Zack for being so welcoming, and Gus(to) McLean in particular for some amazing trips as well as indispensable help in preparing this manuscript. The facilities at Georgetown, the Library of Congress and (in Mexico) the Universidad Nacional Autónoma de México were all first-class, and I can only hope the book reflects this. Special words of thanks are directed to the Library of Congress staff as well as Arturo Manjarrez Mosqueda of the Instituto de Investigaciones Jurídicas for helping me find my way through the libraries’ amazing catalogues. I also wish to express my enormous gratitude to René de Groot. Knowing that I can always count on his enthusiasm, expertise and energetic support has simply been priceless. I will always retain fond memories of our stay at Aruba’s ‘Talk of the Town’, ironically the most convenient place for us to meet when we were both in the Americas while still being ‘home’ in the Netherlands. Thank you, René, for discussing a first draft of this book on Aruba and for (again) investing considerable time in one of my projects. I am also happy that my ties with the European Union Democracy Obser­ vatory on Citizenship (eudo Citizenship) were not in any way weakened because of my extended residence on a different continent. I want to warmly thank Maarten Vink for continuing our work on nationality law in Europe and the exciting talks about taking the study of comparative nationality law to a

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Acknowledgments

global level. Maastricht University has taken important steps in that direction by means of the MACIMIDE project, launched in April 2014, and it is hoped that the results of this book will benefit the development of a ‘Global Nationality Database’ in the near future. This is also the place to highlight eudo Citizenship’s pioneering work over the last few years in developing the methodology and typology that this book draws on. While the current eudo members have considerably fine-tuned the ‘modes of acquisition and loss of citizenship’ that form the core of this study, they were originally devised by a team participating in the 2004 natac project. Their role in rigorously thinking through an innovative and analytical grid to map different grounds for acquiring and losing citizenship is hereby duly acknowledged. The map of the American hemisphere is reproduced with the kind permission of Esri. The field of nationality law can be technical and diffuse at times, and the linguistic and comparative problems posed by the five (European) languages spoken in the Western Hemisphere were never slight. But this is a matter for the book itself to explain. Suffice it to state here that any mistakes are of course my own. On a final note, and somewhat needless to say, I emphasize that while this research project was funded by the European Commission, the opinions expressed in this work exclusively reflect my own. Also, while I have made every effort to conduct this research to the best of my abilities, any liability for errors or omissions in this book is disclaimed. Comments are obviously very welcome and can be sent to: [email protected] Olivier Vonk

Washington, dc April 2014

List of Abbreviations

Latin Terms

Ex lege by operation of the law, automatically Iure sanguinis by ius sanguinis Iure soli by ius soli Ius sanguinis Lit.: right of the blood: a person acquires the nationality of a parent at birth or by the establishment of a child–parent family relationship Ius soli Lit.: right of the soil: a person acquires the nationality of his country of birth



Abbreviations of International Instruments

AmCHR 1969 American Convention on Human Rights (San José, Costa Rica, 22 November 1969 oas Treaty Series No. 36, unts 1144, 123) cedaw 1979 Convention on the Elimination of All Forms of Discrimination against Women (New York, 18 December 1979 unts 660, 195) crs 1961 Convention on the Reduction of Statelessness (New York, 30 August 1961 unts 989, 175) ecn 1997 European Convention on Nationality (Strasbourg, 6 November 1997 ets 166) iccpr 1966 Covenant on Civil and Political Rights (New York, 19 December 1966 unts 999, 171) udhr 1948 Universal Declaration of Human Rights (adopted and proclaimed by the un General Assembly on 10 December 1948)

bna cets eudo cjeu echr ECtHR ets

Other Abbreviations British Nationality Act Council of Europe Treaty Series European Union Democracy Observatory on Citizenship Court of Justice of the European Union European Convention on Human Rights European Court of Human Rights European Treaty Series

x lnts oas unhcr unts

List of Abbreviations  League of Nations Treaty Series Organization of American States United Nations High Commissioner for Refugees United Nations Treaty Series

Map of the Western Hemisphere

xii

Map of the Western Hemisphere

Part 1 Nationality Law in the Western Hemisphere Setting the Scene

∵

Chapter 1

Introduction to Part 1 1.1

General Introduction

The origins of this project can be traced back to my own difficulties in accessing concise and up-to-date overviews of the nationality law rules of the thirtyfive independent nation-states in the Western Hemisphere – that is, North, South, and Central America as well as the Caribbean.1 It is well known that States have traditionally been granted great autonomy under international law to regulate nationality law as they saw fit,2 which has led to a startling diversity of legal provisions and policies.3 Comparative work in the field has therefore never been an easy feat, and it is further complicated by the fact that nationality laws usually reflect complex historical processes and are more often than not only accessible in the original language (or in non-official translations). The innumerable statuses under British nationality law illustrate the former point well and are a concrete reflection of Britain’s complex colonial legacy.4 Yet, proof that information relating to the often technical field of nationality law can nonetheless be presented in an accessible and user-friendly way is furnished by the European Union Democracy Observatory on Citizenship (hereafter: eudo Citizenship, eudo, or the Observatory), an inter-disciplinary academic network on nationality law founded in 2009. The innovative work of 1 ‘Western Hemisphere’ was considered the best short-hand for the purposes of this study, although ‘American Hemisphere’ is also used. An alternative term would have been ‘the Americas’, but this was considered slightly too vague since it might be misunderstood as mainland America – thus excluding the Caribbean. 2 O. Vonk, Dual Nationality in the European Union. A Study on Changing Norms in Public and Private International Law and in the Municipal Laws of Four eu Member States, PhD diss. European University Institute (Leiden/Boston: Martinus Nijhoff Publishers, 2012), 35. 3 For the European context, see R. Bauböck et al., “Introduction”, in Acquisition and Loss of Nationality, Policies and Trends in 15 European Countries, ed. R. Bauböck, et al. (Amsterdam: Amsterdam University Press, 2006). Less research has been done on other continents, but two studies deserve particular mention: Ko Swan Sik, ed. Nationality and International law in Asian Perspective (Dordrecht/ Boston: Martinus Nijhoff Publishers, 1990); B. Manby, Struggles for Citizenship in Africa (London: Zed Books, 2009). 4 Following Fransman, I mention British citizenship, British overseas territories citizenship, British Overseas citizenship, British National (Overseas) status, British subject status, British protected person status, and Commonwealth citizens. See L. Fransman, Fransman’s British Nationality Law (West Sussex: Bloomsbury Professional, 2011), 293. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004276413_002

4

Chapter 1

the Observatory, resulting in recent years in a methodology that identifies twenty-seven ‘modes of acquisition’ and fifteen ‘modes of loss’ of nationality,5 as well as seventeen ‘modes of protection against statelessness’,6 provides individuals, governments and other users with easy and up-to-date access to every possible way of acquiring and losing citizenship in Europe.7 The European statelessness database, in turn, includes information on the extent to which citizenship laws provide sufficient protection against statelessness, in light of the most important international standards, such as the 1954 un Convention Relating to the Status of Stateless Persons and the 1961 un Convention on the Reduction of Statelessness. Read in conjunction with the above-mentioned databases, individual eudo country reports, as well as numerous other complementary eudo publications, provide further insight into current and historical trends in the citizenship laws of (at the time of writing) forty-one European countries. Nothing comparable, however, can be found for the thirty-five nation-states of the Western Hemisphere. Relevant information is scattered, not always available in English, and consequently difficult to access. There also seem to be fewer legal scholars publishing on nationality law in Latin America and the Caribbean, and comparative nationality studies is clearly an even more neglected field. In contrast, comparative citizenship law has attracted ever more attention in Europe since the introduction of European Union (eu) citizenship by the Maastricht Treaty in 1992.8 The fact that one becomes an eu citizen by acquiring the nationality of an eu Member State, and that one can subsequently settle as a Union citizen in any of the twenty-eight Member States, has led to a growing interest in Europe to know more about the functioning of the Member States’ respective nationality laws. The lack of an overarching status like eu citizenship for the Western Hemisphere has resulted in comparative citizenship law understandably 5 M. Vink, O. Vonk, and I. Honohan, “eudo Citizenship Database on Modes of Acquisition of Citizenship in Europe” and “eudo Citizenship Database on Modes of Loss of Citizenship in Europe”, (San Domenico di Fiesole: European University Institute, 2013). 6 O. Vonk, M. Vink, and G.-R. de Groot, “eudo Citizenship/unhcr Database on Protection against Statelessness in Europe”, (San Domenico di Fiesole: European University Institute, 2013). 7 The terms nationality and citizenship are discussed separately later in this chapter (­section 2). Let it suffice here to say that they will be used interchangeably in this study, as is also the case for the terms national and citizen. 8 O. Vonk, Dual Nationality in the European Union, 66. See also F. Strumia, Supranational Citizenship and the Challenge of Diversity: Immigrants, Citizens, and Member States in the eu (Leiden/Boston: Martinus Nijhoff Publishers, 2013).

Introduction to Part 1

5

­ aving attracted less academic scholarship in this region. A recent exception is h Culling the Masses, a project conducted by David Cook-Martín and David FitzGerald. Their project tracks immigration and nationality laws in the Western Hemisphere over the last 200 years, yet it primarily focuses on the ethnoracial selectivity of those laws.9 In contrast, this study looks at nationality legislation in a strictly legal sense and attempts to fill the gap that will have been encountered by anyone who has made an attempt to study nationality law in the region. The book will do this by, first, collecting citizenship-related information for thirty-five countries in tables along the lines of the eudo ­databases on acquisition and loss; and second by providing concise analyses of individual countries. These analyses by no means aim at comprehensiveness but rather complement the overview tables, point at salient features of each country’s citizenship law and provide bibliographical references for further research. The only book known to me covering the nationality legislation of the whole Western Hemisphere is in German and was written by the great nationality law expert Hellmuth Hecker.10 Not only is this book thirty years old, and therefore outdated on most points, an analysis in English also seems badly needed. Hecker’s analysis consists of four parts. Starting off with a description of the treaties that the countries in the Western Hemisphere are party to, he continues with a description of the nationality legislation of the independent countries. He then briefly examines, in a broad sense, the colonial territories in the region – including non-independent territories such as Puerto Rico. The book concludes with integral versions of the respective countries’ nationality legislation. The underlying book is structured differently in that its analysis focuses on the grounds for acquisition and loss of nationality in the independent countries in the region. A brief overview of non-independent territories that are part of France, the Netherlands, the United Kingdom, or the United States is nonetheless provided in Chapter 2. Also, a separate overview of the treaties that the thirty-five countries under discussion have become party to is not provided since this will be covered in a separate book on nationality under international law.11 Relevant national law, moreover, will not be reproduced here as 9

10 11

David Scott FitzGerald and David Cook-Martín, Culling the Masses. The Democratic Origins of Racist Immigration Policy in the Americas (Cambridge, Massachusets: Harvard University Press, 2014). H. Hecker, Das Staatsangehörigkeitsrecht von Amerika: Nord-, Sud-, Mittelamerika und Karibik (Frankfurt am Main: Verlag für Standesamtswesen, 1984). Being prepared together with G.R. de Groot of Maastricht University.

6

Chapter 1

almost all legislation can be found online. Finally, this book is different in structure from Hecker’s in that the main analysis is provided in overview tables, an approach introduced by eudo Citizenship to facilitate crosscountry comparisons and to highlight aspects of nationality law that would otherwise pass unobserved. In short, while the book by Hecker is particularly useful for the overview provided of (historical) nationality-related texts from the moment the different countries became independent, the underlying study provides a much more comprehensive analysis of ways of acquiring and losing citizenship in the Western Hemisphere. It was already mentioned that this book is inspired by the methodology of the eudo databases on acquisition and loss of citizenship as well as the database on statelessness. These online tools have been complemented by comparative eudo reports analysing in more elaborate and descriptive ways the rather concise information from the databases.12 In contrast to these reports, which follow what might be called a ‘mode-based’ analysis, this book adopts a different approach by discussing the nation-states of the Western Hemisphere on a country-by-country basis. This deviation from eudo Citizenship can be explained by several reasons. First, the reports just mentioned can focus exclusively on the comparative analysis for the simple reason that detailed country reports are already part of broader eudo Citizenship research.13 By contrast, the lack of even the most basic information in English on the citizenship laws of the countries of the Western Hemisphere means that this study cannot solely be a comparative exercise. Additional information on individual countries will need to be provided in order to contextualize the analysis properly. The second reason is that it is easier to apply an overarching analytical grid to the European context due to the existence of the 1997 European Convention on Nationality (ecn).14 Like European citizenship, this instrument can be said to reflect a growing common interest on the European level with regard to citizenship law; unlike eu ­citizenship, however, which is a concept of eu law, the ecn is a Convention 12

13 14

See G.-R. de Groot and M.P. Vink, “Loss of Citizenship: Trends and Regulations in Europe” and “Birthright Citizenship: Trends and Regulations in Europe”, eudo Citizenship Comparative Reports (2010); O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness: trends and regulations in Europe”, eudo Citizenship Comparative Report (2013). See the tab ‘country profiles’ on http://eudo-citizenship.eu/. G.-R. de Groot, “The European Convention on Nationality: a step towards a ius commune in the field of nationality law”, mj 7, no. 2 (2000); P.J. Spiro, “A New International Law of Citizenship”, Am J. Int’l L. 105, no. 4 (2011).

Introduction to Part 1

7

initiated by the Council of Europe.15 The ecn being an instrument that ­contains highly relevant and detailed regional norms on acquisition and loss of citizenship, it is only logical that it has served as a normative vehicle to assess the citizenship laws of the member states of the Council of Europe. The authors of a comparative eudo Citizenship report on loss of citizenship therefore write: In this paper we use articles 7 and 8 from the European Convention on Nationality as tertium comparationis for the analysis and comparison of the different grounds of loss of citizenship. In other words, we analyse the relevant regulations in the thirty-three [European] countries with regard to the fifteen modes of loss of citizenship in light of these norms provided by the European Convention on Nationality.16 The European Convention on Nationality being a regional instrument means that it clearly cannot be used as tertium comparationis for our purposes. We therefore have to rely on more general international standards as well as norms specific to the American Hemisphere region. Yet conducting a normative analysis is complicated by the rather non-intrusive nature of these international norms (apart from the norms on statelessness) as well as the absence of an appreciable body of case law on nationality matters by the Inter-American Court of Human Rights. Key observations from the three Court judgments that were deemed most important are provided in Chapter 3. Compared to the international norms on nationality law in a broad sense, the norms on protection against statelessness are more far-reaching and have been further clarified in recent and authoritative unchr Guidelines on the interpretation of the 1954 and 1961 Conventions on statelessness.17 These guidelines will be referred to frequently throughout the book. Although our inquiry will focus predominantly on acquisition and loss of nationality generally, the topic shall also be approached from the perspective of dual nationality and statelessness – what we might call the two ends of the citizenship spectrum. Considering the great leeway granted to states by international law in the domain of acquisition and loss of nationality, however, the principal analysis shall be more descriptive and comparative than normative. 15 16 17

On this distinction between the Council of Europe and the eu, see O. Vonk, Dual Nationality in the European Union, 89ff. G.-R. de Groot and M.P. Vink, “Loss of Citizenship: Trends and Regulations in Europe”, 5. See in detail O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness: trends and regulations in Europe” (2013).

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Chapter 1

The absence of a convention similar to the ecn in the Western Hemisphere combined with the rather negligible body of case law by the Inter-American Court means that there are not many leads for a value-based assessment of grounds for acquisition and loss of nationality. Such an assessment, however, is possible when examining statelessness. In fact, the Court’s case law on this matter, the un Conventions and the above-mentioned unhcr Guidelines provide excellent points of departure. The international norms on prevention and reduction of statelessness can be found throughout the country analyses. How­ ever, since several countries have rather similar rules in this respect, detailing the international context each and every time would have resulted in too much repetition and overlap. The analysis is therefore frequently limited to observing that a particular rule is problematic in light of protection against statelessness, either because the rule creates cases of statelessness or because it does not prevent such cases from arising. In that situation it can be assumed that the international background was already sketched in another country analysis. Finally, the countries are assessed against international norms irrespective of whether they are actually a party to the instrument dictating those norms. Using the analysis, both contracting and non-contracting states to the international conventions can be called to account for, respectively, non-compliance with or non-participation in conventions that fight statelessness.18 Much of the current citizenship research stresses a limited number of characteristics particular for the Western Hemisphere region. In respect of Latin America – and to a great extent also Canada and the United States – most commentators limit themselves to observing that ius soli has always been the preferred method of citizenship attribution,19 and that the region therefore does not have a statelessness problem.20 Other aspects of citizenship law are generally neglected, although the phenomenon of dual nationality has been the subject of growing academic analysis in recent years.21 The ius soli tradition in 18 19

20 21

See on the European context O. Vonk, M. Vink, and G.-R. De Groot, “Benchmarking the Protection against Statelessness in Europe: Comparative Findings”, T.L.R. 19, no. 1–2 (2014). L. van Waas, Nationality Matters. Statelessness under international law (Antwerp: Intersentia, 2008), 61. See also P. Moosmayer, Der Gebietsgrundsatz im Staatsangehörigkeitsrecht ( jus soli): unter besonderer Berücksichtigung der südamerikanischen Staaten (Frankfurt am Main: Alfred Metzner Verlag, 1963). S. Kosinski, “State of Uncertainty: Citizenship, Statelessness, and Discrimination in the Dominican Republic”, B.C. Int’l & Comp. L. Rev. 32 (2009), 382. On the phenomenon of dual nationality in the relationship between Latin America, on the one hand, and Spain and Italy, on the other, see O. Vonk, Dual Nationality in the European Union, Chapters 5 and 6; D. Cook-Martín, The Scramble for Citizens. Dual Nationality and State Competition for Immigrants (Stanford: Stanford University Press, 2013).

Introduction to Part 1

9

Latin America and dual nationality are of course related in that it was the low population in nineteenth century Latin America that made automatic ius soli acquisition the most efficient way of reaching population growth. But as emigrant-sending states like Italy and Spain adhered to their descent-based nationality laws, and thus stressed ius sanguinis acquisition, subsequent generations of Latin Americans also became eligible for Italian or Spanish nationality. To be sure, since the American Hemisphere is traditionally a region of immigration where many states have had fixed borders for a long period of time, the study of nationality law at first sight appears less complex than in Europe, where countries are divided between migrant sending and receiving states and where borders have fluctuated in recent history – particularly in Central and Eastern Europe.22 This has led to diaspora populations in neighbouring countries that are sometimes not part of the eu and has triggered a whole dynamic of its own.23 The shared (im)migration history of the Western Hemisphere, in contrast, allows for the hypothesis that citizenship policies have never diverged to the extent that they did in Europe. On the other hand, the fact that certain States in Latin America and the Caribbean have become net emigration countries is likely to have had certain effects on their nationality laws in recent years. The country studies in Chapter 5 will show a trend towards a greater role of ius sanguinis in Latin American countries, which can probably be attributed to their growing emigrant populations. The Caribbean region, in turn, has recently received attention from (primarily) European scholars who investigate the relationship between eu Member States and their overseas territories in the Caribbean.24 The problématique

22

23

24

Latin American countries have also increasingly come to accept dual nationality to keep ties with the emigrant diaspora in the United States. See for example M. JonesCorrea, “Under Two Flags: Dual Nationality in Latin American and its Consequences for Naturalization in the United States”, International Migration Review 35, no. 4 (2001); P. Levitt, “Variations in Transnational Belonging: Lessons from Brazil and the Dominican Republic”, in Dual Nationality, Social Rights and Federal Citizenship in the us and Europe, ed. R. Hansen and P. Weil (New York: Berghahn books, 2002). E. Horváth, Mandating identity: citizenship, kinship laws and plural nationality in the European Union, PhD diss. European University Institute (Alphen aan den Rijn: Kluwer Law International, 2007). R. Bauböck, ed. Dual citizenship for transborder-minorities? How to respond to the Hungarian-Slovak tit-for-tat, eudo Citizenship Working Paper (2010); C. Margiotta and O. Vonk, “Nationality law and European citizenship: the role of dual nationality”, in Globalisation, Migration, and the Future of Europe. Insiders and Outsiders, ed. L.S. Talani (London: Routledge, 2012). D. Kochenov et al., eds., Schurende rechtsordes: Over de Europese Unie, het Koninkrijk, en zijn Caribische gebieden (Groningen: Europa Law Publishing, 2008); L. Fransman, British

10

Chapter 1

attracting most attention in this region with regard to citizenship law concerns the systematic denial of birth registration and documentation to children born in the Dominican Republic of Haitian migrant workers, who in many cases have lived there for a long time – sometimes decades.25 The lack of a Dominican birth certificate means that individuals cannot obtain a national identity card (cédula de identidad y electoral), necessary to enjoy political, economic, and civil rights under Dominican law.26 The denial of citizenship is estimated to have resulted in hundreds of thousands of stateless people in cases where, in the words of one commentator, ‘Most stateless people born in the Dominican [sic] have no remaining ties to Haiti and desire to stay in the Dominican Republic’.27 The chapter on the Dominican Republic addresses this topic at greater length. It is rather unique, when looked at from a global comparative perspective,28 that thirty out of thirty-five countries in the Western Hemisphere have automatic ius soli acquisition at birth.29 The five countries that do not provide for

25

26

27 28

29

Nationality Law; D. Kochenov, ed. eu Law of the Overseas: Outermost Regions, Overseas Countries and Territories Associated with the Union, Territories Sui Generis (The Hague: Kluwer Law International, 2011). L. van Waas, “The children of irregular migrants: a stateless generation?”, N.Q.H.R. 25, no. 3 (2007); S. Kosinski, “State of Uncertainty: Citizenship, Statelessness, and Discrimination in the Dominican Republic”. See also P.J. Glen, “Wong Kim Ark and Sentencia que Declara Constitucional La Ley General de Migración 285–04 in Comparative Perspective: Constitutional Interpretation, Jus Soli Principles, and Political Morality”, U. Miami Inter-Am. L. Rev. 39, no. 1 (2007); M. Lynch, “Dominican Republic, Haiti, and the United States: Protect Rights, Reduce Statelessness”, (2007); Open Society Justice Initiative, “Dominicans of Haitian Descent and the Compromised Right to Nationality. Report presented to the Inter-American Commission on Human Rights on the Occasion of its 140th Session”, (2010); R.T. Middleton, “The Operation of the Principle of Jus Soli and its Effect on Immigrant Inclusion into a National Identity: A Constitutional Analysis of the United States and the Dominican Republic”, Rutgers Race & L. Rev. 13 (2011). See additionally http://www.state.gov/j/prm/releases/remarks/2011/181082.htm. R.T. Middleton, “The Operation of the Principle of Jus Soli and its Effect on Immigrant Inclusion into a National Identity: A Constitutional Analysis of the United States and the Dominican Republic”, 89. S. Kosinski, “State of Uncertainty: Citizenship, Statelessness, and Discrimination in the Dominican Republic”, 397. Many countries that used to apply ius soli in the past have removed this way of acquisition from their legislation. See J. Feere, “Birthright Citizenship in the United States: A Global Comparison”, Center for Immigration Studies (2010). See the references to the countries’ respective constitutions in K. Culliton-González, “Born in the Americas: Birthright Citizenship and Human Rights”, Harv. Hum. Rts. J. 25 (2012), 135.

Introduction to Part 1

11

automatic acquisition this way are the Bahamas, Colombia, the Dominican Republic, Haiti and Surinam. While the long-standing ius soli tradition suggests that a nationality is therefore secured for every child at birth, the problem of universal birth registration is serious and persistent in Latin America, with around one in six children not being registered at birth and therefore lacking birth certificates. This amounts to two million Latin American children born each year.30 This important topic, however, is not addressed in more detail in this study. Any exploration of nationality law and nationhood in this region should of course start with a historical contextualization of the Western Hemisphere. A good start is John Elliott’s Empires of the Atlantic World, which contains a detailed overview of the differences between the development of the British and Spanish empires in the Americas from the early years of settlement.31 ‘The willingness of the English crown to sanction projects designed to provide refuge in America for a harassed minority’, Elliott notes, ‘contrasted strikingly with the determination of the Spanish crown to prevent the migration of Jews, Moors and heretics to the Indies’.32 His book continues to point out many more salient differences, of which the following seem most important.33 While the British crown and Anglican church kept a low profile,34 in Spanish America the 30

31

32 33 34

Y. Mackenzie, “The Campaign for Universal Birth Registration in Latin America: Ensuring all Latin American Children’s Inherent Right to Life and Survival by First Guaranteeing Their Right to a Legal Identity”, Ga. J. Int’l & Comp. L. 37 (2009), 521–522. See also P. Gerber, A. Gargett, and M. Castan, “Does the right to birth registration include a right to a birth certificate?”, N.Q.H.R. 29, no. 4 (2011). J.H. Elliott, Empires of the Atlantic World. Britain and Spain in America 1492–1830 (New Haven and London: Yale University Press, 2006). A good summary of this work in Spanish can be found in J.H. Elliott, “¿Empezar de nuevo? El ocaso de los imperios español y británico en América”, in Construyendo Patrias. Ibéroamerica 1810–1824. Una Reflexión, ed. G. Jiménez Codinach (México, D.F.: Fomento Cultural Banamex, 2010). García Martínez also reminds us that in the sixteenth and seventeenth centuries one did not speak of ‘the Kingdom of Spain’, for the Iberian peninsula consisted of different sovereign kingdoms. Although it would therefore technically be more correct to speak of the kingdom of Castile, being the kingdom that ruled over America, this would not serve our purposes here. What is more, Americans themselves never really made this distinction and simply used the terms Spain and Spaniards. See B. García Martínez, “La época colonial hasta 1760”, in Nueva historia mínima de México (México, D.F.: El colegio de México, 2004), 61–62. J.H. Elliott, Empires of the Atlantic World, 24. Ibid., 27ff. Ibid., 112. The absence of uniform royal control was of course related to the fact that colonial charters had been granted to corporate and private proprietors for the purpose of

12

Chapter 1

crown and the Catholic church were omnipresent;35 the absence of gold and silver in North America forced on the British settlers a developmental rationale, while an exploitative rationale prevailed in Spanish America;36 the number of emigrants to North America was much greater because the work was already done in Spanish America by native Indians and blacks;37 whereas Spanish America was urban and had a number of very large cities, North America was rural;38 strong fears existed among the British settlers of ‘cultural degeneracy’ but much less so among the Spaniards;39 the development of a

35

36

37

38 39

planting new settlements. The presence of the British crown in North America would admittedly grow stronger around 1700, mainly for trade-related reasons. The level of Spanish absolutism becomes very clear from C. Gibson, Spain in America (New York: Harper Publishers, 1966), 90ff. As regards the Catholic church, however, Gibson points to the following (at 78): ‘The familiar notion of a controlled, monolithic Spanish colonial church is inaccurate. Church history in colonial Spanish America is a history of constant internal squabbles’. Which of course does not mean to say that colonies such as New Spain and Peru, both with important mining activities, were not also settler communities. In fact, they were first and foremost places of settlement and although the mining areas ‘were exploitation enclaves par excellence … their symbiotic relationship to the surrounding settler communities diluted their influence and mitigated their autonomy and their social impact’. It was primarily the lack of a sufficiently large work force that frustrated attempts in these colonies in the direction of the exploitation-based colonies that would develop in the Caribbean in the seventeenth century. See F.W. Knight, The Caribbean. The Genesis of a Fragmented Nationalism, 3rd ed. (New York: Oxford University Press, 2012), 53. Ironically, it had been Bartolomé de Las Casas – the great defender of the ‘Indians’ – who had suggested bringing African slaves to the New World to do the work for which the Indians were physically so ill-suited. Las Casas would later express great regret about this. See O. von Habsburg, Charles V, trans. M. Ross (New York: Praeger Publishers, 1969), 183–184. While Mexico City had over 100,000 inhabitants in 1692, Boston had 6,000. See J.H. Elliott, Empires of the Atlantic World, 181. Compare O. Paz, The Labyrinth of Solitude and other writings (New York: Grove Press, 1985), 102–103. ‘The difference between colonial Mexico and the English colonies was immense. New Spain committed many horrors, but at least it did not commit the gravest of all: that of denying a place, even at the foot of the social scale, to the people who composed it. There were classes, castes and slaves, but there were no pariahs, no persons lacking a fixed social condition and a legal, moral and religious status’. Here it is also worth mentioning that ‘durante dos siglos después de la conquista [i.e. during the Habsburg reign] existió una tácita alianza entre la corona española y sus súbditos indígenas en el Nuevo Mundo, fundamentada en el pago del tributo a cambio de protección legal contra los excesos tanto de criollos como de españoles, castas y otros indios. Esta frágil alianza se fue debilitando a partir de las reformas borbónicas y sufrió

Introduction to Part 1

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‘free play of enterprise’40 in British America contrasted sharply with the rigid regulatory control over the movements of transatlantic trade by Spain;41 and while considerable diversity could be witnessed among the British colonies, more uniformity existed under the rule of the Spanish crown in Spanish America.42 Finally, a major difference relates to the political organization of both empires, since Spanish American territories never acquired representative legislative assemblies of their own.43 For the British colonies, in contrast, shaped by parliamentary tradition, equality of status with the mother country was conceived in terms of legislative autonomy in all matters of internal government. For the creoles of the bureaucratized world of Spanish America it was essentially administrative, and would be ensured by the appointment of locals rather than peninsular Spaniards, to administrative and judicial posts.44 In addition to briefly sketching the historical background of the development of North and South America, Elliott’s comparative observations serve the dual purpose of, on the one hand, showing the differing approach of Britain and Spain to their respective empires while, on the other, stressing the common overarching Spanish-colonial influence throughout Spanish-speaking Latin America. I will get back to this after paying due consideration to the Caribbean region.

40 41

42

43 44

una ruptura después del proceso de independencia a medida que se fueron transformando las teorías y prácticas que regían la relación entre gobierno y súbditos indígenas’. See Brian Owensby in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia. Los textos fundamentales de las independencias americanas (México, D.F.: Instituto de Investigaciones Históricas de la unam, 2013), 83. J.H. Elliott, Empires of the Atlantic World, 112. Spain admittedly introduced reforms in the eighteenth century, so as to become more competitive, by increasingly copying the British commercial empire. ‘It was one of the ironies of the 1760s’, Elliott notes, ‘that Spanish ministers should have taken Britain’s commercial empire in America as a model for their own at a time when the British themselves were becoming increasingly attracted by the idea of a more centrally controlled empire on the model of the Spanish’. Ibid., 303. ‘A member of the elite of Mexico City would have had no great difficulty in adjusting to life among the elite of Lima’, Elliott writes. Also, ‘racially, [the Spanish American] societies might be more mixed, but religiously and politically they tended towards the monochrome’. Ibid., 177, 281. Ibid., 112. Emphasis added. Ibid., 363.

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Chapter 1

In describing the history of the Caribbean, one of the foremost experts on the region, Franklin Knight, departs from a number of assumptions that have direct relevance for this analysis. While not denying the individual historic traditions of the Caribbean countries as well as their linguistic and administrative differences, the entire region can be said to have lived through similar processes. Thus, ‘Caribbean history viewed from the Caribbean offers a quite different perspective than Caribbean history viewed from outside the region’.45 This view leads Franklin to the assumption that while the separate units pass through the same general experience, they do so at different times – hence comparisons of the Caribbean should be systadial46 rather than synchronic. Another assumption is that the sum of the common experiences and understandings of the Caribbean outweigh the territorial differences or peculiarities. To speak therefore of Haitian, Jamaican, Cuban, or Caribbean characteristics should not be to speak of them as mutually exclusive; the first are merely variations or components of the last.47 In Knight’s view, moreover, the Caribbean region ‘comprises one cultural area in which common factors have forged a more-or-less common way of looking at life, the world, and their place in the scheme of things’.48 Under this ‘internal’ view the European colonies in the Caribbean can historically be divided into settler colonies, on the one hand, and exploitation colonies based on slave labour for the production of predominantly sugar, on the other. During the earlier stages of Spanish presence in the Caribbean – that is, from the late fifteenth century onwards – one can still speak of settlement colonies. Spanish dominance in the region had been broken, however, by the end of the seventeenth century – the Dutch having been instrumental in this development. Quoting work by Parry and Sherlock, Knight writes that ‘it was Dutch action in the Caribbean which enabled [French- and English-American] settlements to take root and grow. Dutch victories strained the overtaxed 45 46

F.W. Knight, The Caribbean, 47. My dictionary does not give a definition of systadial, but it follows from other publications that it can be roughly translated as ‘same stage’. The term is thought to mean that ‘the fundamental socio-economic developments through which the units passed at different times must provide the framework for Caribbean history’. See B.W. Higman, ed. General History of the Caribbean: Methodology and Historiography of the Caribbean vol. 6 (Palgrave Macmillan: unesco, 2007), 322. 47 F.W. Knight, The Caribbean, xvi. 48 Ibid.

Introduction to Part 1

15

resources of Spain almost to the breaking point, and provided a naval screen behind which the English, the French, the Scots and the Danes, without much danger of Spanish interference, could build up their colonies in a long string down the Atlantic coast from Newfoundland to Barbados’.49 Over time these Caribbean islands, under the rule of different European powers, moved from being settler colonies to exploitation colonies. This process started with the conversion of Barbados from a settler to an exploitation colony around 1650 and set in motion the rapid expansion of the importation of slaves in the Caribbean.50 Other English colonies such as Jamaica and St Kitts, as well as French colonies like Martinique and Guadeloupe, followed suit during the seventeenth century. The Spanish colonies of Cuba, Puerto Rico and Santo Domingo (presently the Dominican Republic) would in turn follow the English and French example in the early eighteenth century.51 By then, a division between settlement colonies on the mainland and exploitation colonies on the islands had become evident. Knight describes this process as follows: ‘The resort to plantation agriculture indicated the failure to re-create viable colonies of Europeans in the tropical islands and circum-Caribbean lowlands. From about the 1640s, the semifeudal European settler frontier slowly gave way to the rigidly organized, commercially integrated exploitation society of masters and slaves’.52 With it a divergence between settler colonies, where inhabitants would in time turn into Americans, and exploitation colonies, where inhabitants would remain European, became evident.53 The ­former would from the early nineteenth century start independence movements while some of the latter remain European to this day. After this short historical sketch, it needs to be explained why the common history of the countries in Latin America and the Caribbean, respectively, is  stressed to such an extent. The principal reason for emphasizing the shared features rather than the differences is to explain and justify the scope of this book. 49 50

51 52 53

Ibid., 35. Knight quotes Parry and Sherlock without, however, referring to any specific work. Would-be settlers would thereafter leave Barbados and move to the British colonies on the American mainland. The subsequent importation of numerous slaves would have a great demographic impact on the Caribbean region, as it would receive almost half of all Africans brought to the Western Hemisphere during the 350-year period of organized transatlantic slave trade. Ibid., 55, 78. Ibid., 54, 62. Ibid., 74. Ibid., 56.

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Chapter 1

To start with, Knight claims with regard to the Caribbean that ‘the differences in beliefs, values, and attitudes of the Trinidadian and the Guyanese are perhaps no greater than those between the English and the Welsh or the Castilian and the Andalucian’.54 Buenos Aires-based Dutch historian Hans Vogel continues along similar lines, observing in his history of Latin America that the borders of the currently independent Latin America States to a great extent correspond to the administrative units created by colonial Spain.55 The viceroyalties of New Spain and Peru were created in the sixteenth century and those of New Granada and Río de la Plata in the eighteenth century;56 also established in the sixteenth century were the captaincies-general of Guatemala, Santo Domingo, New Granada – before the latter became a viceroyalty by merging with Venezuela – and Chile.57 The national capitals are also usually the same as those of the Spanish administrative units.58 In addition to this institutional continuity, national borders have proven rather stable over time (if we leave out the creation of several ‘buffer states’),59 and Latin America 54 55 56

57

58

59

Ibid., xvi. J. Lynch, The Spanish American Revolutions 1808–1826, 2nd ed. (New York and London: W.W. Norton&Company, 1986), 25. It is worth noting that the two more recent viceroyalties were thus created under the Bourbons, who succeeded to the Spanish throne in 1700 when the last Habsburg king – Carlos II (‘the Bewitched’) – died without heirs. See C. Gibson, Spain in America, 168. On the reforms enacted by the Bourbons – sometimes also referred to as ‘the second conquest of America’ – see in particular J. Lynch, The Spanish American Revolutions 1808–1826, Chapter 1. H. Vogel, Geschiedenis van Latijns-Amerika, 6th ed. (Utrecht: Het Spectrum, 2002), 140. See also E. Williamson, The Penguin History of Latin America, revised ed. (London: Penguin, 2009), 198; J.A. Booth, C.J. Wade, and T.W. Walker, Understanding Central America. Global Forces, Rebellion, and Change, 5th ed. (Boulder: Westview Press, 2010), 49. It can be added that audiencias, or courts of law, were established in the capital cities of the larger provinces in the sixteenth century, to wit Santo Domingo (1511), Mexico City (1529), Panama (1538), Lima (1542), Guatemala (1544), Guadalajara (1549), Santa Fe de Bogotá (1549), Charcas (1559), Quito (1563), and Santiago de Chile (1565). See E. Williamson, The Penguin History of Latin America, 92. It is worth noting that the independence of Uruguay in 1828, a country created to form a buffer between Argentina and Brazil, as well as Panama’s independence from Colombia in 1903 came about under pressure from foreign powers. See E. Galeano’s Memory of Fire Trilogy (Vol 2., 139–140; Vol 3., 7–8). The same can be said of Bolivia, according to Klein, who writes: ‘By 1825, Bolívar … was beginning to fear the growth of too powerful a Peruvian republic, which in turn could threaten the existence and importance of his own base in Gran Colombia. Finally, the unqualifiedly hostile reception of Argentina to all his plans made the idea of a buffer state

Introduction to Part 1

17

shares a common language – with the exception of Portuguese-speaking Brazil – as well as a common religion in the form of Catholicism.60 Despite the  separate national revolutionary movements in the early nineteenth century, moreover, a common feature was that the revolutionaries wanted self-government for creoles, ‘not necessarily for Indians, blacks, or mixed races, who together comprised over 80 percent of the population of Spanish America’.61 All Latin American countries, finally, have been subject to the domination of the United States in the American Hemisphere. This shared history has made some authors argue for the creation of a supernacionalidad continental in Latin America.62 These observations are important for the purposes of our inquiry into nationality law in Latin America, since nationality is often linked to questions of national identity and nationhood. However, considering that the Latin American countries are actually geographical and institutional creations of the Spaniards, it is probably safe to say that the differences between Argentineans and Uruguayans are less noteworthy than, to take a European example, Dutch and Belgians or Germans and Poles. Indeed, Vogel thinks that differences in Latin America can be attributed more to (opportunistic) political motives and national histories that only differ slightly in the aftermath of the struggle for independence than to any real objective distinctions.63 Thus, he argues that cultural differences hardly exist between inhabitants of coastal cities like Cartagena (Colombia) and Maracaibo (Venezuela). And Argentineans from Buenos Aires are said to regard inland Argentineans as more of outsiders than Uruguayans from Montevideo.64 In this connection it is also worth quoting Octavio Paz, who in his celebrated The Labyrinth of Solitude writes the following about the independent republics established in the first decades of the nineteenth century: [T]he new republics were created by the political and military necessities of the moment, not as an expression of a real historical need. ‘National traits’ were formed later, and in many cases they were simply the result of between Peru and Argentina a reasonable proposition’. H.S. Klein, A concise history of Bolivia, 2nd ed. (New York: Cambridge University Press, 2011), 99. 60 H. Vogel, Geschiedenis van Latijns-Amerika, 233. 61 J. Lynch, San Martín. Argentine Soldier, American Hero (New Haven and London: Yale University Press, 2009), 29. 62 M. Somohano Flores, “La supernacionalidad Continental Iberoamericana”, Revista Orientación Jurídica 1, no. 1 (1945), 55–57. 63 H. Vogel, Geschiedenis van Latijns-Amerika, 233. 64 Ibid., 234.

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Chapter 1

the nationalistic preachments of the various governments. Even now, a century and a half later, no one can explain satisfactorily the ‘national’ differences between Argentineans and Uruguayans, Peruvians and Ecuadorians, Guatemalans and Mexicans. And nothing except the persistence of local oligarchies, supported by North American imperialism, can explain the existence of nine republics in Central America and the Antilles.65 It is of course possible to take issue with these claims by arguing that the above is an oversimplification and that strong national distinctions do exist between the inhabitants of Cartagena and Maracaibo. One admittedly only needs to read works by such different authors as Carlos Fuentes, Eduardo Galeano, V.S. Naipaul, and Mario Vargas Llosa to get a feeling for the differences between the countries in Latin America and the Caribbean.66 The debate on national identity is further complicated by the lack of cultural and linguistic homogeneity within some countries; Guatemala, for instance, is said to have struggled ‘with the question of how to integrate the approximately two-thirds of its population that is indigenous and much of which speaks no Spanish’.67 This fact should in turn be placed in the context of the denial or even extermination of Indian traditions by the dominant non-Indian society: There is an attempt to hide and ignore the Indian face of Mexico because no real connection with Mesoamerican [i.e. Mexico and most of Central America] civilization is admitted. The clear and undeniable evidence of our Indian ancestry is a mirror in which we do not wish to see our own reflection.68 However, it is emphatically stressed that a discussion on national identity or the pre-Hispanic heritage in Latin American and Caribbean States is not the 65 66

67 68

O. Paz, The Labyrinth of Solitude and other writings, 121–122. See for example V.S. Naipaul, The Middle Passage. The Caribbean Revisited (New York: Vintage Books, 1962); E. Galeano, Memory of Fire Trilogy (New York: Nation Books, 1985); C. Fuentes, The Buried Mirror: Reflections on Spain and the New World (New York: Mariner Books, 1999); M. Vargas Llosa, Diccionario del amante de América Latina (Dictionary of the Lover of Latin America) (Barcelona: Paidós Ibérica Ediciones, 2006). J.A. Booth, C.J. Wade, and T.W. Walker, Understanding Central America, 8–9. G. Bonfil Batalla, México Profundo. Reclaiming a Civilization, trans. P.A. Dennis (Austin: University of Texas Press, 1996), 18. To put this remark in the right perspective, it might also be illustrative to point out that ‘Mexico City is the place with the largest number of speakers of indigenous languages in all the Americas’ (at 52).

Introduction to Part 1

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theme of the following pages; they are simply a description of grounds for acquisition and loss of citizenship in the Western Hemisphere. The historical observations will therefore have served their purpose if they make plausible the claim that it is not indispensable for the analysis of municipal nationality law to address in detail questions of national identity and nationhood. That does not mean to say, however, that these questions will be completely ignored. To a certain extent, the issue of dual nationality in the relationship between Latin America and Spain, the nationality-related arrangements between the Central American States, as well as Commonwealth citizenship in the Englishspeaking Caribbean are reflections of this (regional) identity. But dual nationality and commonwealth citizenship are phenomena that we can actually trace back in the Nationality Acts of the countries under discussion, and both topics can therefore be the subject of legal analysis. This clearly is not the case with respect to more abstract questions of national identity and nationhood. Another reason to pay less attention to national sentiments is that they seem more important in relation to ius sanguinis countries – that is, countries whose nationality is transmitted on the basis of descent. While ius sanguinisbased acquisition implies strong ethnic connotations, the ius soli tradition in  the Western Hemisphere in combination with its immigration history emphasizes the importance of the national territory rather than natural belonging or ethnicity. It should also be mentioned that the term nationality is not exclusively used to refer to the legal link between an individual and a State. Just as confusion exists about the difference – if any – between citizenship and nationality,69 the term nationality is also used in different contexts.70 Thus, José Mata Gavidia gives the following somewhat inflated definition of nationality as employed for the purposes of his work. Nacionalidad is ‘a heterogeneous complex of ethnic variations that has been acquired over time within a more or less defined space and whose expression brings out the collective physiognomy of a nation and the way it is or acts’.71 In their book on the origins of Ecuadorian identity, 69 70

71

See in more detail infra Section 2. See generally J.A. Miquel Calatayud, “Consideraciones sobre la nacionalidad”, in Homenaje a José María Chico y Ortiz, ed. J.L. Gimeno y Gómez-Lafuente (Madrid: Marcial Pons, 1995); N. González Martín, “Reflexiones sociológicas y jurídicas de la nacionalidad”, in Las migraciones y los transterrados de España y México. Una segunda mirada, humanística, ed. H. Fernández de Castro (México, D.F.: unam, 2004). Mata Gavidia, 5. Abbreviated references link to the bibliography at the end of this section. ‘Un complejo heterogéneo de modalidades étnicas, acdquiridas a través del tiempo y en espacio más o menos determinado, cuyas manifestaciones, coordinadas por uno, o muy

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Alberto Muñoz Vernaza and Juan Cordero Iñiguez in turn use the term nationality in the title when in fact writing about Ecuadorian history and customs. They explain that ‘the detailed study of the origins of a people is of great importance for its social life, since these contain the seeds of its being, the philosophy of its history, its ethnic constitution, and the causes of its customs and its dynamic evolution’.72 These different approaches to the concept of nationality are in a way captured by the well-known refugee definition, referring to a ‘well-founded fear of being persecuted for reasons of race, religion [and] nationality ….’.73 Under this Article, the term nationality is concerned with membership of a religious, linguistic or ethnic group.74 Needless to say, all these different understandings of the idea of nationality are not relevant to the present inquiry into the legal link between a citizen and a State. Readers who are particularly interested in the approach of the abovementioned authors are referred to the selected bibliography below under a). Although these works on different Latin American countries prominently feature the term nationality in the title, they in fact address this concept in relation to national origin, nationalism or membership of a religious, linguistic or ethnic group. Another subject that this book leaves aside is the important relationship between nationality and private international law (hereafter: pil) – more often referred to as conflict of laws in the Anglo-Saxon tradition.75 Traditionally, pil either employs nationality or habitual residence/domicile as a connecting factor – that is, as a criterion to decide which legal system should govern a ­private law relationship connected to more than one country. Here, it is ­simply  pointed out that some Latin American doctrine stresses the importance of a having a profound understanding of nationality matters for the pocos valores individuantes hacen destacar la fisonomía colectiva de una nación en su modo de ser o de actuar’. 72 Muñoz Vernaza and Cordero Iñiguez, introduction. ‘Es de gran importancia en la vida social de un pueblo, el estudio detallado de sus orígenes; porque en ellos se contienen los gérmenes de su ser, la filosofía de su historia, su formación étnica, la razón de sus costumbres y las causas de su evolución dinámica’. See in general also G. Weill, La Europa del siglo XIX y la idea de la nacionalidad, trans. J. López Pérez (México, D.F.: Impresora Dante, 1961). 73 Article 1A(2) of the 1951 Refugees Convention. 74 While unhcr does not use the term in this manner, it gives a good description of nationality employed in an ethnic sense in para. 45 of unhcr, “Guidelines on Statelessness No. 1: The definition of “Stateless Person” in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons”, (2012). 75 See generally D. McClean and K. Beevers, Morris: The Conflict of Laws (London: Sweet&Maxwell, 2009).

Introduction to Part 1

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study of pil,76 while others neglect the topic and instead emphasize the decreasing importance of nationality as a connecting factor in Latin America.77 Some literature on this subject is listed below under b). The way this book will proceed is as follows. Being divided into five chapters, the first chapter will continue by explaining the most common terms used in comparative nationality law – not only in English but, since this book involves the use of other languages as well, also in French, Dutch, Spanish and Portuguese. Chapter 1 ends with brief remarks on the nationality legislation of Spain and the United Kingdom – the two most important former colonizing powers in the region. It will be seen there that knowledge of these countries, while not absolutely essential, can help in contextualizing the information that is later provided on the thirty-five individual countries. Next, Chapter 2 examines the Caribbean territories that have never become independent and belong to France, the Netherlands, the United Kingdom, or the United States. While they do not have their own nationality legislation, by belonging to the Caribbean region they certainly deserve separate attention, and an understanding of their institutional position within the four different countries seems indispensable for a study covering the entire Western Hemisphere. Chapter 3 in turn gives an overview of the most important nationalityrelated case law of the Inter-American Court of Human Rights, based in San José, Costa Rica. Although nationality law has never been a field attracting a great deal of international case law, owing to the long-standing tradition of nationality belonging to the domaine réservé of the nation-state,78 the Court has handed down a number of important judgments that will be addressed in some of the country studies. The final chapter before arriving at the individual country analyses is concerned with explaining the methodology and typology underlying this book. Let it be clear that this study could never have been written had it not been for the pioneering work of the European Union Democracy Observatory on Citizenship in developing such a comprehensive analytical grid. While the development of twenty-seven ‘modes of acquisition’ and fifteen ‘modes of loss’ was meant to bring some order to a field that can often be technical and ­diffuse, 76 77 78

Dolinger, 153–206. T.B. de Maekelt, Teoría general del derecho internacional privado, 2nd ed. (Caracas: Academia de Ciencias Políticas y Sociales, 2010), 27. See already the Tunis and Morocco Nationality Decrees Case, handed down by the Permanent Court of International Justice in 1923, and analyzed in W. Benedek, “Nationality decrees in Tunis and Morocco (Advisory Opinion)”, in Encyclopedia of Public International Law, ed. R. Bernhardt (Amsterdam: Elsevier, 1997), 510–511.

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it is readily acknowledged that familiarizing oneself with the ‘modes’ may take some time. For that purpose, an attempt has been made in the overview table listed at the end of Chapter 4 to present the typology as clearly as possible, by providing a ‘short description’ for each mode, the specific ‘target person’, and the particular ‘focus’. After this long preamble the core of the book consists of thirty-five country chapters. They contain tables that describe the grounds for acquisition and loss as they currently exist in the different countries, as well as a descriptive analysis of the determining characteristics of each country’s nationality legislation. The ‘short description’ of each mode will be repeated in the acquisition and loss tables, so as to avoid having to go back and forth between Chapters 4 and 5. By simply referring to the ‘code’ of each mode – e.g. A06 or L01 – the aim is that the country analyses can maintain a sense of fluidity that would have been lost had these modes been consistently written in full. (a)

Non-legal publications that feature the term nationality in the title

Amunátegui y Solar, Domingo. Formación de la nacionalidad chilena. Santiago de Chile: Universidad de Chile, 1943. Arévalo Martínez, Rafael. Influencia de España en la formación de la nacionalidad centroamericana. Guatemala: Tipografía nacional, 1943. Bertoni, Lilia Ana. Patriotas, cosmopolitas y nacionalistas. La construcción de la nacionalidad argentina a fines del siglo XIX. Buenos Aires: Fondo de Cultura Económica, 2001. Blanco Acevedo, Pablo. El gobierno colonial en el Uruguay y los orígenes de la nacionalidad. Montevideo: Ministerio de Educación y Cultura, 1975. Bossano, Guillermo. Vicisitudes de la nacionalidad ecuatoriana: mirajes históricosociológicos de la conquista a través del proceso vital patrio. 3rd ed. Quito: Editorial Casa de la Cultura Ecuatoriana, 1975. Cardozo, Efraím. El Paraguay colonial. Las raíces de la nacionalidad. Buenos Aires: Ediciones Nizza, 1959. Celiano, Monge. Estudios básicos sobre la nacionalidad ecuatoriana. Quito: Centro de Estudios Historícos del Ejército, 1998. Cordero Solano, José Abdulio. El ser de la nacionalidad costarricense. Madrid: Editorial Tridente, 1964. Córdova, Wilson M. La nacionalidad ecuatoriana (conferencia dictada en la Universidad nacional de Chile). Santiago de Chile: Imprenta Universidad Chile, 1941. del Real Alcalá, J. Alberto. “Sobre la indeterminación del Derecho y la Ley constitucional. El término ‘nacionalidades’ como concepto jurídico indeterminado”. FORO. Revista de derecho, no. 2 (2003–2004): 127–151.

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Eyzaguirre, Jaime. Historia de Chile. Genesis de la nacionalidad. Santiago de Chile: Zig-Zag, 1965. Fernández-Caubí, Luis. Apuntes sobre la nacionalidad cubana. Miami: Ediciones Universal, 1996. Lima, Oliveira. Formação histórica da nacionalidade brasileira. 2nd ed. Rio de Janeiro: Topbooks, 1997. Mata Gavidia, José. La influencia de España en la formación de la nacionalidad centroamericana. Guatemala: Editorial José de Pineda Ibarra, 1981. Meléndez, Próspero. Panamá y el Canal. Un breve ensayo sobre los problemas que a la nacionalidad panameña ha presentado y sigue presentando la construcción y administración del Canal. Panamá, 1961. Muñoz Vernaza, Alberto, and Juan Cordero Iñiguez. Orígenes de la nacionalidad ecuatoriana, y otros ensayos. Quito: Corporación Editora Nacional, 1984. Páez Allende, Luis J. La nacionalidad argentina, ensayo preliminar. 3rd ed. Buenos Aires: S.I.A., 1945. Perales Ortiz, Ricardo. Proceso histórico de la nacionalidad boliviana. Biblioteca de estudios jurídicos. Oruro: Editorial de la Universidad Técnica, 1958. Real de Azúa, Carlos. Los orígenes de la nacionalidad uruguaya. Montevideo: Arca, 1990. Sellán Ch., Jorge. La formación de la nacionalidad chilena. Santiago de Chile, 1952. Vallenilla Lanz, Laureano. Disgregación e integración: ensayo sobre la formación de la nacionalidad venezolana. Caracas: Fondo Editorial Lola de Fuenmayor, 1984. Vaquero Dávila, Jesús. Génesis de la nacionalidad ecuatoriana. Quito: Imprenta de la Universidad, 1941. Vázquez Machicado, Humberto. Orígenes históricos de la nacionalidad boliviana. La Paz: Editorial Universitaria, 1975.

(b)

On the relationship between nationality and conflict of laws

Baudrand Perey, René Luis. Síntesis de algunos problemas de nacionalidad en el derecho internacional privado. Santiago de Chile, 1949. [95 p; book follows the French and Spanish tradition, where the study of nationality law is part of private international law.] Chamorro Garrido, Gustavo. La nacionalidad ante el derecho internacional privado y el derecho sud americano. Santiago de Chile: Imprenta y enc. Pino, 1936. [104 p; as regards the private international law dimension, see the remarks under Baudrand Perey; pages 53–93 contain comparative remarks on the nationality laws of the Latin American countries; much attention for the nationality position of the married woman.] Dolinger, Jacob. Direito internacional privado: parte geral. 7th ed. Rio de Janeiro: Renovar, 2003, p. 153–206.

24

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Ochoa Monterrosa, Eduardo. La nacionalidad como punto de conexión. México City, 1960. [106 p; book takes a private international law approach by looking at nationality as a connecting factor in finding the applicable law.] Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012. [In particular Chapter 2, entitled ‘The Role of Dual Nationality in Private International Law and EU Law’.]

1.2

Observations on Matters of Terminology and Definition in Nationality Law

The substantive legal difference between the terms ‘nationality’ and ‘citizenship’, if any, is a recurrent theme in the field of nationality/citizenship law.79 Confusion has always existed as to the exact meaning of these two terms, which not only follows from the fact that the legal and political science literature attach different meanings to them, but also because the terms do not have the same meaning in different legal traditions. It is primarily in the English language that difficulties can arise. For instance, the United States uses the term citizenship to describe persons who have unrestricted access to u.s. territory as well as full voting rights.80 u.s. citizens are contrasted with u.s. nationals, who do not have voting rights in federal and state elections. The situation in the United States, where the status of u.s. ­citizen is the most privileged status one can acquire, is therefore comparable to that in Britain, where the status of British citizen entails the unrestricted right to enter the uk as well as full voting rights.81 Confusingly, the English language also uses the term citizenship to denote political membership.

79

See generally O. Vonk, Dual Nationality in the European Union, 19ff. For a historical overview, see R. Kubben, “To Belong or Not to Belong. Historical Reflections on Foreigners, Citizenship and Law”, T.L.R. 19, no. 1–2 (2014). 80 §101(a)(38) ina states what is understood by the ‘United States’ under the law; §101(a)(29) makes clear that the term ‘outlying possessions of the United States’ refers to American Samoa and Swains Island. Moreover, while §301–307 ina list the categories of persons who are nationals and citizens of the United States at birth, §308 provides that persons born in outlying possessions of the United States are nationals but not citizens of the United States. See also S.H. Legomsky and C.M. Rodríguez, Immigration and Refugee Law and Policy, 5th ed. (New York: Foundation Press, 2009), 1292. 81 See the overview provided by L. Fransman, British Nationality Law, 293. The status of British citizen is listed first in this overview, while the (disappearing category of) British

Introduction to Part 1

25

The differentiation between nationality and citizenship is more straightforward in the European continental tradition. Nationality (nationalité, nacionalidad, nacionalidade and nationaliteit)82 is normally used to indicate a formal, legal bond between an individual and a State; the term citizenship (citoyenneté, ciudadanía, cidadania and burgerschap) is used to denote political membership of a State. Carlos Closa provides the following concise description of how the difference between nationality and citizenship is commonly understood in Europe: ‘Nationality means the affiliation of an individual from the point of view of international law, whilst citizenship implies the host of domestic rights attached to that affiliation’.83 This rather clear-cut distinction between nationality and citizenship on the European continent is, however, subject to exceptions. In Germany and Italy the terms Staatsangehörigkeit and cittadinanza are employed to describe the legal link between the individual and the State; Italy also uses this term to denote ‘political’ citizenship. The words Nationalität and nazionalità are generally not used by reason of their ethnic connotation, although this is not a hard and fast rule.84 While it was seen that citizenship is used in the Anglo-Saxon world in situations where continental Europe would speak of nationality, the considerable focus on the English-speaking world in this book is an important reason for using the terms nationality and citizenship interchangeably. (The same is true for the terms national and citizen.) A second reason has to do with the strong dependence in this study on the methodology and typology developed by

82

83 84

National (Overseas) status ‘appl[ies] to certain former [British Dependent Territories Citizens] who acquired that citizenship by virtue of a connection with Hong Kong’. See also C. Sawyer and H. Wray, “Report on the United Kingdom”, eudo Citizenship Observatory Country Reports (2012), 21. These are terms in French, Spanish, Portuguese and Dutch respectively. I limit myself in this section to the languages accessible to me – that is, the five languages covered in this book as well as German and Italian. For the terms in other countries, see e.g. G.-R. de Groot, “Towards a European Nationality Law”, in Migration, Integration and Citizenship, A Challenge for Europe’s Future, ed. H. Schneider (Maastricht: Forum, 2005). C. Closa, “Citizenship of the Union and nationality of Member States”, C.M.L.Rev. 32 (1995), 492. C. Margiotta and O. Vonk, “Doppia cittadinanza e cittadinanza duale: normative degli Stati membri e cittadinanza europea”, Diritto, Immigrazione e Cittadinanza, no. 4 (2010). In this article cittadinanza was used to describe the legal link between individual and State, although nationalità was sometimes admittedly used as a synonym. It seemed that my Italian colleague did not attribute similarly strong ethnic connotations to nazionalità as I did to the German Nationalität.

26

Chapter 1

eudo Citizenship. Since the Observatory uses citizenship in describing the domestic nationality law rules in forty-one European countries,85 this practice provides further justification for giving the term citizenship a more prominent place than I did in previous publications.86 Many other terminological difficulties arise in the area of nationality law. Particularly important are the concept of ‘citizen by birth’ in the different legal traditions; the distinction between ‘acquisition’ and ‘attribution’; and the different words used for naturalization in the nationality legislation of the Spanish-speaking countries. In contrast to the continental traditions – which for our purposes will be understood as those of France, Portugal and Spain – the British tradition distinguishes between acquisition by birth, on the one hand, and acquisition by descent, on the other. While someone is a British citizen by birth if born in the United Kingdom to a British citizen or a foreigner who is settled there (Article 1 British Nationality Act (bna)), those born abroad to a British citizen are citizens by descent (Article 2 bna).87 This distinction has a long history and was also found in the predecessor of the current bna 1981 – that is, the bna 1948.88 The background to this distinction is of course the traditional dominance of ius soli over ius sanguinis under British law, with the latter being a default ground for acquisition. It will be seen throughout this book that the English-speaking countries in the Western Hemisphere generally follow this distinction. The countries with a continental European background – such as Frenchspeaking Haiti, Spanish-speaking Chile and Portuguese-speaking Brazil – ­generally do not make this distinction. In these countries the term ‘by birth’ normally encapsulates acquisition by birth on the territory as well as by descent – in nationality law jargon acquisition iure soli as well as iure ­sanguinis. A further complication is that the Spanish-speaking countries describe the concept of ‘by birth’ differently. Thus, we may find the terms por nacimiento in Venezuela, de origen in Guatemala, nacionales in Nicaragua, and naturales in Uruguay. The terms used for ‘naturalization’ are equally diverse in the Spanishspeaking countries, witness descriptions such as por adopción in Colombia, nacionalización in Chile, and naturalización in Guatemala. 85 86 87 88

Although the Observatory’s ‘Glossary’ states that it uses nationality and citizenship interchangeably, a practice has developed of citizenship being used much more frequently. The term nationality was used almost exclusively in O. Vonk, Dual Nationality in the European Union. See also J.M. Evans, Immigration Law (London: Sweet&Maxwell, 1983), 77–82. L. Fransman, British Nationality Law, 361, 381.

Introduction to Part 1

27

The distinction between, first, the British and continental tradition, and, second, the different terms used in the Spanish-speaking countries for such basic concepts as by birth and naturalization has important consequences for the terminology used in this book. It is clear that the phrase ‘citizen by birth’ can only be understood if one is aware of the specific meaning of this concept in each of the countries under discussion. If not, it would be unclear whether by birth only refers to acquisition iure soli (the British tradition) or also to acquisition iure sanguinis (the European continental tradition). In nationality law, one must also be mindful of the distinction between ‘attribution of nationality’ and ‘acquisition of nationality’. As observed by René de Groot in reference to the French tradition, ‘attribution de nationalité includes ius soli and ius sanguinis. Naturalization is the most important way of acquisition de nationalité’.89 This means that the first words of the following heading of Article 25 of the French Code Civil cannot be translated as ‘an individual who acquired the status of French …’: L’individu qui a acquis la qualité de Français peut, par décret pris après avis conforme du Conseil d’Etat, être déchu de la nationalité française, sauf si la déchéance a pour résultat de le rendre apatride. De Groot rightly emphasizes that in reading this phrase, one should be aware that it only applies to French nationals who got their nationality by acquisition (i.e. by naturalization) and not to those who hold French nationality by attribution (i.e. by birth).90 The terminology under Spanish and Portuguese law is very similar to that of France. Spain uses the terms atribución (meaning that the person is considered a national by birth and holds nacionalidad originaria) and adquisición. In the latter case the term nacionalidad adquirida is used.91 Portugal in turn distinguishes 89

90 91

G.-R. de Groot, “The Influence of Problems of Legal Translation on Comparative Law Research”, in The Role of Legal Translation in Legal Harmonization, ed. C.J.W. Baaij (Alphen aan den Rijn: Kluwer, 2012), 151. See also S. Massicot, “La nationalité française. Attribution et acquisition”, Population 41, no. 2 (1986); P. Lagarde, La nationalité française, 4th ed. (Paris: Dalloz, 2011), 82. Lagarde remarks: ‘L’acquisition de la nationalité française est le passage de la qualité d’étranger à celle de Français. La nationalité française acquise a été longtemps moins efficace, quant aux droits dont elle confère la jouissance, que la nationalité française d’origine’. G.-R. de Groot, “The Influence of Problems of Legal Translation on Comparative Law Research”, 152. R. Pére Raluy, Derecho de nacionalidad (Barcelona: J.M. Bosch, 1955), 67; J.C. Fernández Rozas, Derecho español de la nacionalidad (Madrid: Editorial Tecnos, 1987), 133.

28

Chapter 1

between atribuição, also called aquisação originária, and aquisação derivada, which refers to acquisition of citizenship later in life.92 The procedure by which citizenship is acquired or lost is also of the utmost relevance for a proper understanding of the ensuing analysis – and in particular the second column of the country tables containing the twenty-seven ‘modes of acquisition’ and the fifteen ‘modes of loss’. It is stressed that the following terminological definitions were developed by eudo Citizenship and are provided in the very extensive ‘Citizenship Glossary’.93 Citizenship can be acquired through different procedures. This book will distinguish between acquisition that is (i) automatic, (ii) by declaration, (iii) by registration, or (iv) by naturalization. The Glossary states that automatic acquisition of nationality is any ex lege mode of acquisition …, i.e. acquisition of nationality by an act of law that does not require some form of expression of intent (application, declaration, making use of an option or similar action) by the person or his or her legal agent in order to acquire nationality. While it may be said that acquisition by declaration generally involves the need for an oral or written declaration addressed to the relevant authorities,94 acquisition by registration is only deemed to come into effect ‘through an act of registration with the public authorities by the person or his or her legal agent’. In contrast to automatic acquisition, all the other forms of acquisition are voluntary. Naturalization in turn is to be distinguished from, on the one hand, automatic acquisition that is not initiated by an individual, and, on the other, acquisition by declaration which is based on a unilateral act by an individual. Thus, naturalization is defined by the Glossary as any mode of acquisition after birth of a nationality not previously held by the person that requires an application by this person or his or her legal agent as well as an act of granting nationality by a public authority. 92 93

94

R.M. Moura Ramos, Do direito português da nacionalidade (Coimbra: Coimbra Editora, 1984), 129. See http://eudo-citizenship.eu/databases/citizenship-glossary/glossary#Autity. It is noted that the Glossary speaks of the ‘target person’ when referring to the individual concerned. In quoting the Glossary, however, this section simply uses the words ‘person’ or ‘individual’. While the Glossary distinguishes between ‘by declaration’ and ‘by option’, it is not essential to treat these forms of acquisition differently here.

Introduction to Part 1

29

Naturalization as well as registration, finally, can be discretionary or based on a legal entitlement. Where the former is defined as ‘acquisition of nationality following a decision by the public authorities that is not based on a subjective entitlement by the person’, the latter is deemed ‘any mode of acquisition based on a decision by the public authorities that must be granted by them if and when the relevant conditions specified by law have been met’. Under a discretionary procedure, the person may ‘but need not, be granted nationality if the conditions specified in the law have been met’. Under the entitlement procedure, in contrast, the person must be granted nationality if the authorities come to the conclusion that the conditions under the law are fulfilled. The authorities do have discretion, however, in deciding whether this is indeed the case. The above should suffice for a proper understanding of the terms used in this book in relation to acquisition of citizenship, but it is repeated that the Glossary developed by eudo Citizenship deals with this terminology in much greater depth. Turning to loss of citizenship now, a distinction will be made between, for some of the modes of loss, renunciation by declaration and by release, and, for others, withdrawal, lapse and nullification. Renunciation is to be distinguished from release in that the latter, although initiated by the individual, requires the approval of a public authority. Loss by release therefore does not take effect once the individual has informed the relevant authority about his or her wish to give up the nationality in question – which would be renunciation of nationality by declaration – but is subject to the approval of that authority. The threefold distinction between withdrawal, lapse and nullification – with the latter somewhat being a category on its own – refers to the following. Copying the structure used above for acquisition of citizenship, we start off again with the automatic variant – that is, lapse of nationality. This is defined as any ex lege mode of loss of nationality, i.e. loss of nationality by an act of law that requires neither explicit expression of intent (application, declaration, making use of an option, or similar modalities) by the person or his or her legal agent to renounce nationality, nor a decision or act by a public authority. Withdrawal of nationality, by contrast, is ‘any mode of non-automatic loss of nationality based on a decision by a public authority to deprive the person of his or her nationality’.

30

Chapter 1

Where lapse and withdrawal are by far the most commonly used procedures for loss of nationality, it is nonetheless important to mention nullification as well, for which the Glossary provides the following description: [An] act of a public authority pronouncing the acquisition of nationality null and void because it is established ex post that conditions required for the acquisition were in fact not met at the time of application or declaration by the person in question or at the time of decision by the responsible authority (whichever is applicable). As a result of this act, the person is retrospectively deemed never to have been a national of the respective state. 1.3

On the Nationality Laws of the Two Major Former Colonial Powers in the Western Hemisphere: Britain and Spain

It is common knowledge that most of the Spanish-speaking countries in the Western Hemisphere became independent from Spain in the first decades of the nineteenth century. The two most notable exceptions are Cuba, which gained its independence at the end of the nineteenth century, and Puerto Rico, which became part of the United States in 1898 and is therefore not an independent State.95 Knowledge of current Spanish nationality law is therefore not strictly essential for a proper understanding of the legislation of the countries in the Western Hemisphere, but a selected bibliography is nonetheless included at the end of this section for two reasons. First, the terminology used in the former Spanish colonies where citizenship law is concerned can be traced back to Spanish law, and consulting Spanish materials may therefore occasionally be useful. Secondly, the bonds between Spain and Latin America have generally remained strong and have over time led to special dual nationality arrangements. Some publications on Spanish law have therefore been included so as to allow readers to also have the Spanish perspective on dual nationality in relation to the Americas. In relation to the former British colonies in the region, it is the limitation of space that prevents this study from paying any separate attention to the historical influence of British nationality law. Although all English-speaking countries analysed in the book have historical links with Britain and have, in the majority of cases, legislation based on the British Nationality Act of 1948, 95

See Chapter 2 for brief remarks on Puerto Rico and Cuba in relation to Spanish nationality.

Introduction to Part 1

31

the complexity of the subject simply does not allow for a concise overview. (Suffice it to point out that the classic textbook that this study draws on is at present 1,853 pages long.)96 The complicated nature of British law can also be illustrated by a quote from Freeman, who writes the following in the introduction to his book which appeared shortly after the enactment of the British Nationality Act 1981, as currently in force: [All the different citizenship categories created by the 1981 Act] leave the law complicated and anomalous. There cannot be another nationality code anywhere in the world that is so complex and obscure that not only will ordinary people not be able to ascertain their status or what is involved in it but the legal profession will be perplexed and unable to advise with certainty how a particular person will be treated.97 While the status of Commonwealth citizenship might in turn be less complex than the different nationality and citizenship statuses existing under British law, the literature on the subject does not address the question that this book is particularly interested in and will try to answer in the country analyses – namely, whether Commonwealth citizens have facilitated access to the nationality of other Commonwealth countries.98 Tendayi Bloom for example ignores this question as her contribution only asks ‘whether a Commonwealth citizen, by virtue of his or her Commonwealth citizenship, is able to: stand for high political office in that state; vote in that state; enter that state without a visa; [and] undertake employment in that state without a work permit’.99 In short, knowledge of the nationality legislation of Britain and Spain – the two most influential former colonial powers in the region – is not absolutely essential to those whose primary interest lies in the Western Hemisphere. Be this as it may, the following list of publications hopes to provide a useful starting point for investigations into the nationality legislation of these two countries. 96

Fransman. Abbreviated references link to the separate bibliography listed at the end of this section. 97 Freeman. 98 An example in Europe where Commonwealth citizens have facilitated access to nationality is the case of Cyprus. See M. Vink, O. Vonk, and I. Honohan, “Modes of Acquisition of Citizenship in Europe”. 99 Bloom, 641.

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British Nationality Law and Commonwealth Citizenship

Bloom, Tendayi. “Contradictions in Formal Commonwealth Citizenship Rights in Commonwealth Countries”. The Round Table: The Commonwealth Journal of International Affairs 100, no. 417 (2011): 639–654. Dummett, Ann. “The New British Nationality Act”. British Journal of Law and Society 8, no. 2 (1981): 233–241. ——. “United Kingdom”. In Acquisition and Loss of Nationality, Policies and Trends in 15 European Countries, edited by Rainer Bauböck, Eva Ersbøll, Kees Groenendijk and Harald Waldrauch. 551–585. Amsterdam: Amsterdam University Press, 2006. Dummett, Ann, and Andrew Nicol. Subjects, Citizens, Aliens and Others. Nationality and Immigration Law. London: Weidenfeld and Nicolson, 1990. Evans, J.M. Immigration Law. London: Sweet&Maxwell, 1983. [In particular p. 57–110.] Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011. Freeman, M.D.A. British Nationality Act 1981. London: Sweet&Maxwell, 1982. Hampe, Karl-Alexander. Das Staatsangehörigkeitsrecht von Grossbritannien. Frankfurt am Main: Alfred Metzner Verlag, 1951. Hansen, Randall. “The Politics of Citizenship in 1940s Britain: The British Nationality Act”. Twentieth Century British History 10, no. 1 (1999): 67–95. Jones, Mervyn J. British nationality law. Oxford: Clarendon, 1956. Karatani, Rieko. Defining British Citizenship: Empire, Commonwealth and Modern Britain. Routledge: London, 2002. Mann, Jatinder. “The evolution of Commonwealth citizenship, 1945–1948 in Canada, Britain and Australia”. Commonwealth & Comparative Politics 50, no. 3 (2012): 293–313. Parry, Clive. Nationality and Citizenship Laws of The Commonwealth and the Republic of Ireland. London: Stevens&Sons, 1957. ——. Nationality and Citizenship Laws of The Commonwealth and the Republic of Ireland. London: Stevens&Sons, 1960. [Book is an additional tome to the 1957 volume and deals with British countries that meanwhile became independent, e.g. Ghana.] Rose, Aubrey. “Nationality Law in Commonwealth Caribbean Countries”. International Legal Practitioner 9 (1984): 123–127. Sawyer, Caroline, and Helena Wray. “Report on the United Kingdom”. EUDO Citizenship Observatory Country Reports, 1–37, 2012. http://eudo-citizenship.eu/admin/?p=file &appl=countryProfiles&f=United%20Kingdom.pdf.

Introduction to Part 1



33

Spanish Nationality Law (with a particular emphasis on the tratados de doble nacionalidad and the 2007 Ley de Memoria Histórica)

Alvarez Rodríguez, Aurelia. Nacionalidad y emigración. Madrid: La Ley, 1990. Arias Castaño, Abel. “Los enemigos de la libertad como solicitantes de la nacionalidad: análisis comparado del problema en los sistemas constitucionales norteamericano y español”. In Derecho, persona y ciudadanía. Una experiencia jurídica comparada, edited by Bernardo Periñán Gómez. 603–620. Madrid: Marcial Pons, 2010. Carrascosa González, Javier. Curso de Nacionalidad y Extranjería. edited by Javier Carrascosa González, Antonia Durán Ayago and Beatriz L. Carrillo Carrillo. Madrid: Colex, 2008. Cazorla González, María José. Adquisición de la nacionalidad por descendientes de españoles. Madrid: Reus, 2011. Díaz Cisneros, César. “La nacionalidad de las personas en los tratados de la república argentina con España”. Anuario Hispano-Luso-Americano de derecho internacional, no. 2 (1963): 187–194. Fernández Rozas, José Carlos. Derecho español de la nacionalidad. Madrid: Editorial Tecnos, 1987. García Blanco, Pedro Pablo. “Acceso a la nacionalidad española y su significación”. In Los menores extranjeros no acompañados, edited by Isabel E. Lázaro González and Beatriz Moroy Arambarri. 157–164. Madrid: Tecnos, 2010. Greño Velasco, José Enrique. “Régimen Jurídico de la Nacionalidad en el Convenio Hispano-Argentino de 14 de Abril de 1969”. La Justicia 31, no. 503 (1972): 48–54. ——. “La ‘clausula constitucional’ en el convenio de nacionalidad entre la república argentina y España”. Anuario Hispano-Luso-Americano de derecho internacional, no. 4 (1973): 207–240. Hampe, Karl-Alexander. Das Staatsangehörigkeitsrecht von Spanien, Portugal und Irland. Frankfurt am Main: Alfred Metzner Verlag, 1954. Palao Moreno, Guillermo, Carlos Esplugues Mota, and Manuel De Lorenzo Segrelles. Nacionalidad y Extranjería. 3rd ed. Valencia: Tirant lo Blanch, 2006. Pérez Beviá, José Antonio. “La protección de los emigrantes y sus descendientes en la nueva legislación española sobre la nacionalidad”. In Immigración y Derechos de los Extranjeros, edited by Annaïck Fernández Le Gal and Sandra García Cano. 87–103. Córdoba: Universidad de Córdoba, 2005. Prieto-Castro y Roumier, Fermín. La Nacionalidad Múltiple. Madrid: Instituto Francisco de Vitoria, 1962. [Chapter 3 is concerned with the Spanish-Latin American dual nationality treaties.]

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Rubio Marín, Ruth, Irene Sobrino, Alberto Martín-Pérez, and Francisco Javier Moreno Fuentes. “Report on Spain”. EUDO Citizenship Observatory Country Reports, 1–30, 2012. http://eudo-citizenship.eu/admin/?p=file&appl=countryProfiles&f=Spain.pdf. Sagarra Trias, Eduard. “Discriminación a los españoles hijos de emigrantes en el acceso a la nacionalidad española de origen. La interpetación errónea de la Disposición Adicional 7a de la Ley 52/2007, de memoria histórica”. La Notaria – Revista del Colegio Notarial de Cataluña, no. 2 (2011): 90–103. Sánchez Jiménez, María Ángeles. “Ley de memoria histórica. El derecho de opción a la nacionalidad española”. Boletín Mexicano de Derecho Comparado 42, no. 125 (2009): 957–990. Viñas Farré, Ramón. “Evolución del derecho de nacionalidad en España: Continuidad y cambios más importantes”. In Cursus de Derecho Internacional y Relaciones Internacionales de Vitoria-Gasteiz. Madrid: Tecnos, 2009. http://www.ehu.es/cursos derechointernacionalvitoria/ponencias/pdf/2009/2009_6.pdf. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012. [Chapter 6 is concerned with Spain, particularly in the context of the dual nationality arrangments with Latin American countries; with many further references.]

Chapter 2

Non-Sovereign Caribbean Territories that Belong to Britain, France, the Netherlands, or the United States1 After a period of colonisation by different European powers, decolonisation in the Caribbean officially began with the 1791 Haitian Revolution. Sovereignty was subsequently secured by the Dominican Republic (1844) and Cuba (1902), quite late by Latin American standards, but the rest of the region remained dependent on traditional metropolitan powers until late into the twentieth century and in some cases to this day.2 Colonies also frequently changed hands in the colonial era, which had an impact on feelings of national identity in the Caribbean. Higman gives the example of the British capture of Trinidad from the Spanish in 1797, which ‘spread a layer of British imperial rule and culture over an existing Catholic, French, and Spanish ruling population, creating cross-cutting levels of national identity and language’.3 This history is described in a fascinating way in V.S. Naipaul’s The Loss of Eldorado.4 Continuing along similar lines, and against the background of the Caribbean islands’ gradual conversion from settler colonies to exploitation colonies in the seventeenth century, Knight points out that imperial divisions were of minor significance – ‘a fact illustrated by the facility with which territories moved into and out of rival imperial administrative controls’.5 The non-sovereign Caribbean territories that currently belong to either Britain, France, the Netherlands, or the United States are the object of analysis in this chapter. They will not be addressed individually in the country analyses since, by belonging to one of these four nation-states, they do not have their own citizenship legislation. The non-sovereign Caribbean territories in fact outnumber the sovereign ones, but their size and population are admittedly much smaller. Although independence was achieved in the 1960s and 70s by 1 Abbreviated references in this section link to the separate bibliography listed at the end. 2 G. Oostindie and I. Klinkers, Decolonising the Caribbean. Dutch Policies in a Comparative Perspective (Amsterdam: Amsterdam University Press, 2003), 9. While the book adopts a Dutch perspective on the Caribbean, it also contains concise analyses of the role of Britain, France and the United States in the region. 3 B.W. Higman, A Concise History of the Caribbean (New York: Cambridge University Press, 2011), 184. 4 V.S. Naipaul, The Loss of Eldorado. A Colonial History (New York: Vintage Books, 1969). 5 F.W. Knight, The Caribbean, 54. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004276413_003

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Chapter 2

the currently independent islands, resulting in eighty-five percent of the Caribbean people currently living in independent countries, Gert Oostindie and Inge Klinkers point out that this came at a high price.6 In general terms, standards of living in the non-sovereign Caribbean are significantly higher than they are in the independent countries. Furthermore, in a region that has witnessed many dictatorial regimes and territorial disputes, and which now faces the contemporary challenges of international crime, the remaining non-sovereign territories still continue to enjoy a higher degree of security and stability.7 Each of the metropolitan countries adopted a different approach to decolonisation. Britain’s aim from the very beginning was the full transfer of sovereignty to the newly independent states, a process that started in the 1960s. However, since this process came to a halt in the 1980s, a considerable number of scattered British overseas territories remain part of Britain to this day. The United States arrived as a new player in the region around the turn of the twentieth century, permanently incorporating Puerto Rico and the Virgin Islands for geopolitical reasons relating to the Cold War, and temporarily occupying Cuba,8 Haiti,9 and the Dominican Republic.10 France hung on to its colonies, even though they were of little economic value, to retain its role in international politics as well as to preserve some its grandeur. The Netherlands, finally, saw Surinam become independent in 1975 but kept its overseas possessions in the Caribbean, be it under all kinds of different political arrangements. While Britain had the greatest number of colonies in the Caribbean, the islands of the British West Indies (also called the Commonwealth Caribbean) were all relatively small.11 As a result, only a quarter of the Caribbean 6 7 8

9 10

11

The authors refer to a total population of thirty-seven million people. According to Higman, this had increased to forty-two million in 2010. G. Oostindie and I. Klinkers, Decolonising the Caribbean, 9. Spain ceded Cuba to the United States after its defeat in the Spanish-American war of 1898, and the island subsequently became a U.S. protectorate for a while, with U.S. marines occupying the island until 1922. See B.W. Higman, A Concise History of the Caribbean, 201. Ibid., 206. Revolt and governmental instability led to U.S. occupation of the island from 1915 until 1934. Ibid., 204. The Dominican Republic’s serious debts made the United States occupy the country from 1916 to 1924. On U.S. imperialism in the Western Hemisphere, see E. Williamson, The Penguin History of Latin America, 322 ff. For historical remarks on the British West Indies, see F.W. Knight, The Caribbean, chapter 10.

The Non-Sovereign Caribbean

37

i­ nhabitants at present are English-speaking.12 After the short-lived West Indian Federation (1958–1962), which brought the British Caribbean islands together in a bureaucratically centralised structure but failed due to lack of homogeneity, most territories soon moved towards independence – starting with Jamaica and Trinidad and Tobago in 1962, and Barbados and British Guyana in 1966. As noted by Aubrey Rose, ‘these independent states now work together regionally within Caricom, the Caribbean Community, but nationality and citizenship remain the province of individual states’.13 By the end of the 1960s Britain only remained responsible for the smaller territories, divided into seven Associated States (Antigua, Dominica, Grenada, St Kitts-Nevis-Anguilla, St Lucia, and St Vincent)14 and six Dependent Territories (the Bahamas, Bermuda, British Virgin Islands, Cayman Islands, Montserrat, and Turks and Caicos Islands).15 Associated Statehood was abolished in 1983 and all seven Associated States but Anguilla – which became a Dependent Territory in 1980 – gained independence. They were subsequently incorporated in the British Commonwealth of Nations.16 The Bahamas, in turn, was the only Dependent Territory to become independent on 10 July 1973. The territories that remain British to this day, and were renamed British Overseas Territories under the British Overseas Territories Act 2002 (bota 2002),17 can become independent if they want to, yet Britain does not apply any pressure in this respect. To summarize, the United Kingdom’s decolonisation of the West Indies…resulted in twelve politically independent countries – dominions within the British Commonwealth – and six so-called British Overseas Territories: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Montserrat, and Turks 12 13

14

15 16 17

G. Oostindie and I. Klinkers, Decolonising the Caribbean, 17. A. Rose, “Nationality Law in Commonwealth Caribbean Countries,” International Legal Practitioner 9 (1984), 123. On the collaboration within Caricom, see Caricom Secretariat, “Model Legislation on Citizenship,” (Georgetown (Guyana): Red Thread Women’s Press, 1997). The booklet has the aim, according to the introduction, of drafting legislation that addresses gender disparities in nationality law. The newly formed Associated States ‘were to be independent in all their domestic affairs, while the United Kingdom would assume responsibility for their defence and external relations’. See G. Oostindie and I. Klinkers, Decolonising the Caribbean, 22–23. Ibid., 22. In the Dependent Territories, ‘the Crown held broad legislative powers, in all areas deemed necessary for good governance’. Commonwealth status ‘includes every form of British nationality save for bpp [British protected persons] status’. See Fransman, 655. The only other bot in the Western Hemisphere concerns the Falklands, which is governed by the British Nationality (Falkland Islands) Act 1983. See Fransman, 317–320.

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and Caicos Islands. The latter group is administered by ‘Her Majesty’s’ Governors’, with different degrees of local autonomy.18 An important development was the extension of British citizenship to the British Overseas Territories by means of the bota 2002 on 21 May 2002. Laurie Fransman notes in this respect that ‘British citizenship conferred by or as a result of bota 2002 does not replace British overseas territories citizenship… The persons concerned are, therefore, dual British citizens/BOTCs’.19 In contrast to Britain, France has always regarded its Caribbean possessions as inherent parts of France which happen to lie in the Western Hemisphere.20 For the purposes of nationality law this had the effect, for example, that the French Nationality Act of 1889 was fully in force in the Caribbean. In the words of Emmanuelle Saada, ‘the law of 1889 declared the definition of nationality for some time to come. It was declared applicable to Algeria (excluding natives) and to the colonies of Guadeloupe, Martinique, and Réunion, but its extension to other territories remained unresolved for many years’.21 As a result of this perception of the French Republic being a single unit, the decolonisation process as implemented on 27 October 1946 through départementalisation resulted in the full integration of Martinique, Guadeloupe, and the French half of St Martin (together forming the French Antilles and French colonies since 1642), as well as Guyane (a colony since 1656) into the French Republic on a constitutional par with departments in mainland France.22 18 19

20

21

22

G. Oostindie and I. Klinkers, Decolonising the Caribbean, 26. Fransman, 323. For remarks from a comparative European perspective, see G.-R. de Groot, “Towards a European Nationality Law – Vers un droit européen de nationalité. Inaugural lecture, delivered on 13 November 2003 on the occasion of the acceptance of the Pierre Harmel chair of professeur invité at the University of Liège,” (2003). Similarly, Algeria was considered part of France, although it lay in Northern Africa. See O. Vonk, Dual Nationality in the European Union, 189. The nationality effects for all these ‘pays d’outre-mer’ were identical and as follows, in the words of Gonidec (at 748): ‘Du fait qu’ils étaient parties intégrantes du territoire français par droit de conquête, leurs ressortisants avaient acquis la nationalité française, c’est-à-dire que juridiquement ils faisaient partie de la population constitutive de l’Etat français’. See Saada (2012), 101–102. On the law of 1889 generally, see P. Weil, How to Be French: Nationality in the Making since 1789 [Qu’est-ce qu’un Français? Histoire de la nationalité française depuis la Révolution], trans. C. Porter (Durham: Duke University Press, 2008). G. Oostindie and I. Klinkers, Decolonising the Caribbean, 29. For the purposes of French nationality, see Article 17(4) of the Civil Code which reads: ‘Au sens du présent titre, l’expression “en France” s’entend du territoire métropolitain, des départements et des collectivités d’outre-mer ainsi que de la Nouvelle-Calédonie et des Terres australes et antarctiques françaises’.

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39

These territories are collectively referred to as the départements d’outre-mer (dom) and number almost one million French Caribbean citizens.23 Départementalisation, which ended the French West Indies’ colonial status, was certainly not brought about unilaterally by France, since Antillean political elites had repeatedly called for complete integration into the French State. Unlike the British Overseas Territories, who can decide themselves on independence or not, there is consensus regarding the fact that political selfdetermination for the dom is not an option.24 The wish for independence is in any case not particularly strong among the majority of the outre-mer population, as the dom’s low productive capacity makes them heavily dependent on financial assistance from both France and the European Union (eu). Despite occasional complaints about second class citizenship and ‘colonial’ treatment by France, the advantages of dependency therefore continue to outweigh the alleged drawbacks.25 It is important from the perspective of citizenship law that all dom inhabitants are eu citizens enjoying free movement within the eu as well as the right to settle there. The United States currently has two possessions in the Caribbean – Puerto Rico and the U.S. Virgin Islands.26 It has been said that when the United States acquired Puerto Rico in 1898, its knowledge of the island was ‘abysmally poor’.27 Before looking at the post-1898 period, it is necessary for the purposes of (Spanish) nationality law to make some observations on Puerto Rico’s history under Spanish rule (1493–1898). Article 9 of the 1898 Peace Treaty concluded between Spain and the United States reads: Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom […] In case they remain in the territory they may preserve their allegiance to the Crown of 23 24 25 26 27

A useful overview, including maps, of (former) French colonies is found in GirardZappelli. Attention is paid to the dom at 110–111. G. Oostindie and I. Klinkers, Decolonising the Caribbean, 35. Ibid., 40. The latter consists of the islands St Thomas, St John, and St Croix. F.W. Knight, The Caribbean, 195. For the sake of completeness it is mentioned that, like Puerto Rico, the Philippines were also ceded to the United States after the SpanishAmerican War and would become independent in 1946. The Panama Canal Zone was an unincorporated U.S. territory (like the U.S. Virgin Islands) until 1979. Jurisdiction was subsequently shared with Panama until the latter acquired full authority over the Canal Zone in 2000. Sections 326 and 303 ina are relevant for the citizenship status of the Philippines and the Panama Canal Zone, respectively.

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Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside.28 In connection with Puerto Rico but also Cuba, since both countries were Spanish territory until 1898, Ramón Viñas Farré has referred to case law in which the precise status of these provincias de ultramar was important in deciding a nationality case.29 Under Article 20(1)(b) of the Spanish Civil Code, persons whose father or mother was Spanish by birth and were ‘born in Spain’ (nacido en España) have an option right to Spanish nationality.30 It has been clarified by Spanish case law, however, that Puerto Rico and Cuba are not to be considered Spanish territory for the purposes of this provision. A claim for an option right to Spanish nationality by someone who was born in Puerto Rico in 1921 to parents born there in 1896 and 1897 was denied. While falling under United States sovereignty since 1898 and 1917, respectively, Puerto Rico and the U.S. Virgin Islands were never incorporated as separate federal states. Moreover, although they acquired a form of limited autonomy in 195231 and 1954, respectively, all competences essentially remained in American hands. In contrast to the Virgin Islands, which was purchased from Denmark in 1917 and has always had a more Anglophone outlook, Puerto  Rican society has been characterized by a Latin culture due to its long  colonial history under Spanish rule. The inhabitants of the islands are American citizens and consequently have the right of abode on American 28

29

30 31

It becomes slightly more clear from the Spanish version that the matter of nationality (nacionalidad) is at stake: ‘Los súbditos españoles, naturales de la Península, residentes en el territorio cuya soberanía España renuncia o cede por el presente tratado, podrán permanecer en dicho territorio o marcharse de él […] En el caso de que permanezcan en el territorio, podrán conservar su nacionalidad española haciendo ante una oficina de registro, dentro de un año después del cambio de ratificaciones de este tratado, una declaración de su propósito de conservar dicha nacionalidad: a falta de esta declaración, se considerará que han renunciado dicha nacionalidad y adoptado la del territorio en el cual pueden residir’. R. Viñas Farré, “Evolución del derecho de nacionalidad en España: Continuidad y cambios más importantes,” in Cursus de Derecho Internacional y Relaciones Internacionales de Vitoria-Gasteiz (Madrid: Tecnos, 2009), 311. See http://eudo-citizenship.eu/country-profiles/?country=Spain. With the promulgation of a new Puerto Rican Constitution the ‘Commonwealth of Puerto Rico’ came into being.

The Non-Sovereign Caribbean

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mainland.32 The number of Puerto Ricans and U.S. Virgin Islanders living in the United States is particularly high.33 Residents of Puerto Rico are subject to differential treatment, however.34 The status of ‘Commonwealth of Puerto Rico’ as held since 1952 effectively means that the island is an associated state (Estado Libre Asociado) ‘in the sense that it [is] legally bound to the federal government in a relationship founded on a communal agreement which, nevertheless, [can] be amended unilaterally by Washington’.35 Despite occasional calls for independence by independistas – some of whom even renounced U.S. citizenship in the hope that this would lead to affirmation of their (separate) Puerto Rican citizenship36 – the benefits of the U.S. passport, the right of abode in the United States, as well as the massive financial assistance results in only a very small minority advocating independence. The absence of a strong independence movement has not prevented support for the present associated status from waning, however, which is predominantly inspired by the claim that Puerto Rico has too little to say in the relationship with the United States. But there has never been majority support for Puerto Rico to become a separate U.S. federal state either, as it is thought to be incompatible with Puerto Rico’s Latin character. The question of the island’s political status thus remains unresolved for now, or, in Alexander Aleinikoff’s phrase, ‘decolonization of Puerto Rico remains a work in progress’.37 The U.S. Virgin Islands became an unincorporated territory of the United States under the Revised Organic Act of 1954 (in force until this day), leading to a limited form of autonomy. In contrast to the relatively poor Puerto Rico, where ‘Associated statehood for forty years has made Puerto Rico somewhat different in degree, but certainly not basically different from the neighboring 32

33 34 35 36 37

See Sections 302 and 306 ina. It is moreover noted that Section 101(a)(38) ina states what is understood by the ‘United States’ under the law, and that Section 101(a)(29) ina makes clear that the term ‘outlying possessions of the United States’ refers to American Samoa and Swains Island. In addition, while Section 301–307 ina list the categories of persons who are nationals and citizens of the United States at birth, Section 308 provides that persons born in an outlying possession of the United States are nationals but not citizens of the United States. See also S.H. Legomsky and C.M. Rodríguez, Immigration and Refugee Law and Policy, 1292. B.W. Higman, A Concise History of the Caribbean, 275. T.A. Aleinikoff, Semblances of Sovereignty. The Constitution, the State, and American Citizenship (Cambridge, Massachusetts: Harvard University Press, 2002), 77. G. Oostindie and I. Klinkers, Decolonising the Caribbean, 47. Nyland, 234. T.A. Aleinikoff, Semblances of Sovereignty, 75.

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states of the Caribbean’,38 the U.S. Virgin Islands are more prosperous and selfsupporting, and the population seems satisfied with the current governance arrangement under United States rule.39 Turning to the Netherlands, finally, Surinam and the Dutch Caribbean – the latter formally called the Dutch Antilles and geographically divided between Curaçao, Bonaire and Aruba, forming the Leeward islands in the south, and St Maarten, St Eustasius and Saba, forming the Windward islands in the north – always held an inferior position in comparison to the Dutch possessions in Asia. While the Dutch East Indies greatly contributed to the Dutch treasury, the Antilles were often a liability – and still are to this day, as some Dutch will argue.40 However, the Dutch inhabitants of the Dutch Caribbean have consistently voted against full independence in a series of referenda.41 The establishment of oil refineries on Curaçao and Aruba in the period between the two World Wars brought great prosperity to these islands – and consequently to the Netherlands. Surinam, on the other hand, remained a liability until it achieved independence in 1975.42 For historical remarks on citizenship-related aspects of the Dutch decolonisation process in Indonesia (which became independent in 1949) and Surinam, readers are referred to elsewhere.43 The Dutch Caribbean, by contrast, never became independent and is part of the Kingdom of the Netherlands to the present day. Moreover, the islands were and remain governed by the Dutch Nationality Act. Against this backdrop, it may suffice for the purposes of this study to make the following brief observations about the relationship within the Kingdom between the European part (the Netherlands proper), on the one hand, and the Dutch Caribbean, on the other.

38 39 40

41 42 43

F.W. Knight, The Caribbean, 210. G. Oostindie and I. Klinkers, Decolonising the Caribbean, 55. Ibid., 59. A case has also been made for the Netherlands to secede from the Kingdom in order to be released from the Dutch Caribbean. See e.g. H.U. Jessurun d’Oliveira, “Nederlandse secessie uit het Koninkrijk. Oftewel: Fifty Ways to Leave your Lover(s)”, in Op het snijvlak van recht en politiek. Opstellen aangeboden aan prof. mr. L. Prakke, ed. J.L. de Reede and J.H. Reestman (Deventer: Kluwer, 2003). D. Kochenov, “Duch Caribbean Territories Facing eu Law,” W.I.L.J. (2012), 149. G. Oostindie and I. Klinkers, Decolonising the Caribbean, 60. O. Vonk, Dual Nationality in the European Union, 212–219. The best monographs on nationality in relation to Indonesian and Surinam independence are, respectively, R.H. de HaasEngel, Het Indonesisch Nationaliteitsrecht, Dissertatie Universiteit Maastricht (Deventer: Kluwer, 1993); H.A. Ahmad Ali, De Toescheidingsovereenkomst inzake nationaliteiten tussen Nederland en Suriname, Dissertatie Universiteit Utrecht (s’-Gravenhage: Sdu, 1998).

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The Dutch Antilles, as they were called before the major constitutional reform of 10 October 2010, have been under Dutch rule since the first half of the seventeenth century. The worldwide decolonisation process in the aftermath of wwii had important consequences for the region and on 29 December 1954 the so-called Charter of the Kingdom (Statuut voor het Koninkrijk) entered into force, governing the relationship between the different countries forming the Kingdom.44 In 1986 Aruba separated itself from the other islands comprising the Dutch Antilles and obtained the status of a separate country within the Kingdom (a so-called ‘status aparte’). Finally, a major restructuring of the Kingdom took place on 10 October 2010. As of that date, the Dutch Antilles as such no longer exist, but the islands remain part of the Kingdom under different legal statuses. St Maarten and Curaçao, which, following the example of Aruba, acquired a ‘status aparte’, became autonomous countries within the Kingdom, while Bonaire, St Eustasius and Saba became ‘special municipalities’ of the Netherlands.45 Bibliography The British Caribbean Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011. [Analysis of British Overseas Territories is spread over pages 811–1439.] Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 253–258.

The Dutch Caribbean de Groot, Gerard-René. “Bent U Nederlander?, Beschouwingen over de verwerving van de Nederlandse nationaliteit door geboorte.” De Iure, Revista Juridica Arubana (1993). 44 45

See http://wetten.overheid.nl/BWBR0002154/geldigheidsdatum_09-10-2013. See the Dutch Staatsblad 2010, 339. For a detailed analysis of the major effects brought about by the dismantling process of the Dutch Antilles on 10 October 2010, see H.G. Hoogers, “De herstructuring van het Koninkrijk als lakmoesproef (deel 1 en 2)”, tvcr, no. 3 and 4 (2010); L.J.J. Rogier, “Het Koninkrijk der Nederlanden na de opheffing van de Nederlandse Antillen op 10 oktober 2010,” AAe (2010).

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——. “Aruba, de Europese Gemeenschap en het nationaliteitsrecht.” In Cinco aña na caminda (Opstellen aangeboden ter gelegenheid van het eerste lustrum van de Fac­ ulteit der Rechtsgeleerdheid van de Universiteit van Aruba), edited by G.F.M. Bossers, A.R.O. Ringeling and M. Tratnik. 43–48. Oranjestad: University of Aruba, 1993. Faneyte-Hage, P. and J.M.M. Sint. “Naturalisatie in de Caraïbische Rijksdelen.” In Feestbundel Zilverentant, edited by F.J.A. van der Velden. 63–68. Den Haag: Ministerie van Justitie-Directie Wetgeving, 1998. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 259. Meijers, H., ed. Volkenrechtelijke aspecten van Antilliaanse onafhankelijkheid. Alphen aan den Rijn: H.D. Tjeenk Willink, 1980, p. 417–467. Mijts, Eric and Gerard-René de Groot. “De onwenselijkheid van een dubbele taaltoets voor naturalisandi in Aruba en de Nederlandse Antillen.” Migrantenrecht 24, no. 8 (2009): 366–371. Mortelmans, K.J.M. and H.A.G. Temmink. “Het vrije personenverkeer tussen de Nederlandse Antillen en Aruba en de Europese Gemeenschap.” In Met het oog op Europa; De Europese Gemeenschap, De Nederlandse Antillen en Aruba. 51–91 (in particular 63–64), 1991.

The French Caribbean Girard-Zappelli, Pâquerette. Guide pratique de la nationalité française: Le droit, les démarches. 4th ed. Paris: Sofiac, 2005, chapter 6. Gonidec, P.F. “Note sur la nationalité et les citoyennetés dans la Communauté.” Annuaire français de droit international 5 (1959): 748–761. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 251–252. Lagarde, Paul. La nationalité française. 3rd ed. Paris: Dalloz, 1997, chapter 8. Saada, Emmanuelle. “Un droit postcolonial.” Plein droit 3, no. 74 (2007): 13–16. ——. Empire’s Children: Race, Filiation, and Citizenship in the French Colonies. Translated by Arthur Goldhammer. Chicago: University of Chicago Press, 2012. Werner, Auguste-Raynald. Essai sur la réglementation de la nationalité dans le droit colonial français. Paris: Receuil Sirey, 1936, p. 121–124.

The United States’ Caribbean Berríos Martínez, Rubén. “Nacionalidad, ciudadanía y nacionalidad dual: la ciudadanía Americana y Puerto Rico.” Revista Jurídica Universidad Americana de Puerto Rico 44, no. 3 (2009–2010): 459–514.

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Cabranes, José A. “Citizenship and the American Empire: Notes on the Legislative History of the United Citizenship of Puerto Ricans.” University of Pennsylvania Law Review 127, no. 2 (1978): 391–492. de Passalacqua, John L.A. “Voluntary renunciation of United States citizenship by Puerto Rican nationals.” Revista Jurídica Universidad Americana de Puerto Rico 66, no. 2 (1997): 269–304. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 260–262. Mari Brás, Juan. “Nacionalidad y ciudadanía de Puerto Rico.” Revista del Colegio de Abogados de Puerto Rico 56, no. 3 (1995): 53–74. McGovney, Dudley O. “Our Non-Citizen Nationals, Who are They?”. California Law Review 22, no. 6 (1934): 593–635. Nylund, Katharine. “The Indignity of a False Citizenship. Self-Induced Statelessness in Puerto Rico.” Tilburg Law Review 19, no. 1–2 (2014): 223–235.

Chapter 3

Key Observations from the Nationality-related Case Law of the Inter-American Court of Human Rights Nationality law is historically not a field that has attracted a lot of international case law.1 A considerable body of jurisprudence from regional courts, such as the European Court of Human Rights (ECtHR), is also lacking. As I have written elsewhere ‘a general right to nationality is not part of the human rights catalogue of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (echr). Although Article 4 of the [1997] European Convention on Nationality (ecn) provides that everyone has the right to a nationality, this right is not protected under the echr’.2 A possibly far-reaching 2011 judgment by the ECtHR on nationality, Genovese v. Malta, is therefore not based on the ecn but on Articles 8 and 14 of the echr.3 The Court concluded in Genovese that (access to) nationality falls under the scope of protection of the echr as part of a person’s social identity, which in turn is part of that person’s private life.4 Interestingly, this argument

1 For an overview, see O. Vonk, Dual Nationality in the European Union, chapter 1. A separate book on nationality under international law is being prepared together with G.R. de Groot of Maastricht University. 2 Ibid., 36. See also G.-R. de Groot, “Survey on Rules on Loss of Nationality in International Treaties and Case Law,” ceps Paper in the Context of the ilec Project (2013), 19. Recent scholarship on nationality as a human right includes S. Uslucan, Zur Weiterentwicklungsfähigkeit des Menschenrechts auf Staatsangehörigkeit (Berlin: Duncker & Humblot, 2012); S. Forlati, “Nationality as a human right,” in The Changing Role of Nationality in International Law, ed. A. Annoni and S. Forlati (London: Routledge, 2013), 28. Forlati concludes from analyzing international case law that ‘it is difficult to construe the human right to a nationality as a rule of jus cogens. However, this right seems by now to be part of customary international law [especially where acquisition by birth is concerned]’. 3 Genovese v. Malta, Application nr. 53124/09. Available at http://eudo-citizenship.eu/caselaw DB/docs/ECHR%20Genovese%20v%20Malta.pdf. In addition to Genovese, a second judgment with important consequences for Europe is that of the Court of Justice of the European Union (cjeu) in Case C-135-08 Rottmann [2010] ecr I-01449. For a discussion, see J. Shaw, ed. Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law?, rscas Working Paper 2011/62 (2011). 4 See G.-R. de Groot and O. Vonk, “Nationality, Statelessness and echr’s Article 8: Comments on Genovese v. Malta,” E.J.M.L. 14, no. 3 (2012); F. Marchadier, “L’attribution de la nationalité à l’épreuve de la Convention européene des droits de l’homme,” Rev. crit. D.I.P. 101, no. 1 (2012).

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004276413_004

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was already made a few years prior to the judgment in a doctoral thesis by Amélie Dionisi-Peyrusse.5 The ecn deals with the matter of nationality in much greater detail than the 1969 American Convention on Human Rights (AmCHR).6 But as already said, despite the existence of the ecn, a substantial body of case law on nationality by regional courts is (still) lacking in Europe.7 Against that background it is hardly surprising that not many nationality-related decisions have been handed down either by the Inter-American Court of Human Rights, which as we will see in Chapter 4 has only one provision to rely on – Article 20 of the Convention. While the right to a nationality is thus not protected under the echr, it is guaranteed by the AmCHR and has resulted in some case law. What is provided below is an overview of what are considered the most important paragraphs from the Inter-American Court’s case law on the matter. It concerns two key judgments from 1984 and 2005, respectively, and one less important judgment from 2001. All italics have been added, unless otherwise indicated. Advisory Opinion Requested by the Government of Costa Rica (1984)8 The Costa Rican government asked the Court in this case for an opinion on the compatibility of certain proposed amendments to Costa Rican nationality law with two Articles of the Convention. In particular, it wanted to know whether the right of every person to a nationality as stipulated in Article 20(1) would be affected by the proposed amendments, and whether the amendments would be compatible with the principle of equality between spouses as laid down in Article 17(4) of the Convention. The Court concluded that Article 20(1) was not affected and that the amendments did not constitute discrimination for

5 ‘Il nous apparaît possible d’envisager cette question [that is, the relation between nationality and human rights law] sous l’angle du droit au respect de la vie privée énoncé à l’article 8 de la Convention européenne des droit de l’Homme. En effet, la nationalité n’est pas sans conséquence sur les rélations sociales et elle entretient des liens avec l’identité. Or, selon la lecture de l’article 8 opérée par la Cour de Strasbourg, les rélations avec les autres et le droit à l’identité sont des éléments de la vie privée. Il nous semble donc permis d’envisager le droit à la nationalité objective comme une application du droit au respect de la vie privée’. See A.l. Dionisi-Peyrusse, Essai sur une nouvelle conception de la nationalité, PhD diss (Paris: Defrénois, 2008), 316. 6 The Convention entered into force on 18 July 1978. See http://www.corteidh.or.cr/. 7 For case law of the cjeu on matters of nationality and eu Citizenship, see O. Vonk, Dual Nationality in the European Union, 95–111. 8 Series A No. 4. Advisory Opinion OC-4/84 of 19 January 1984.

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the  purposes of Article 17(4). The judgment, however, is considered more important for the general observations made by the Court in respect of the concept of nationality. It is generally accepted today that nationality is an inherent right of all human beings. Not only is nationality the basic requirement for the exercise of political rights, it also has an important bearing on the individual’s legal capacity. Thus, despite the fact that it is traditionally accepted that the conferral and regulation of nationality are matters for each state to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the states in that area, and that the manners in which states regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction; those powers of the state are also circumscribed by their obligations to ensure the full protection of human rights.9 The right of every human being to a nationality has been recognized as such by international law. Two aspects of this right are reflected in Article 20 of the Convention: first, the right to a nationality established therein provides the individual with a minimal measure of legal protection in international relations through the link his nationality establishes between him and the state in question; and, second, the protection therein accorded the individual against the arbitrary deprivation of his nationality, without which he would be deprived for all practical purposes of all of his political rights as well as of those civil rights that are tied to the nationality of the individual.10 Yean and Bosico Children v. the Dominican Republic (2005)11 The facts of this case were that Dilcia Oliven Yean and Violeta Bosico Cofi (‘The Yean and Bosico children’), born in 1996 and 1985 respectively to Dominican mothers but of Haitian origin through their fathers and maternal grandfathers, had been denied birth certificates by the Registry Office in spite of the fact that they were born in the Dominican Republic and that Dominican law establishes the principle of ius soli acquisition. The Court summarized the application submitted to it by the Inter-American Commission on Human Rights as follows:

9 10 11

Para. 32. Para. 34. Serie C No. 130. Judgment of 8 September 2005.

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The Commission indicated that the State obliged the alleged victims to endure a situation of continued illegality and social vulnerability, violations that are even more serious in the case of children, since the Dominican Republic denied the Yean and Bosico children their right to Dominican nationality and let them remain stateless persons until September 25, 2001. According to the Commission, the child Violeta Bosico was unable to attend school for one year owing to the lack of an identity document. The Commission also alleges that the absence of a mechanism or procedure for an individual to appeal a decision of the Registry Office before a judge of first instance, and also the discriminatory acts of the Registry Office officials, who did not allow the alleged victims to obtain their birth certificate, violate specific rights embodied in the Convention. The Yean and Bosico judgment is not only important for the Court’s conclusion that several of the Articles of the American Convention were indeed violated – including the right to nationality – but also for the general remarks on the concept of nationality in the American Hemisphere, particularly where statelessness is concerned. While the most important paragraphs are copied below, readers are referred to the chapter on the Dominican Republic for further references on this case. The determination of who has a right to be a national continues to fall within a State’s domestic jurisdiction. However, its discretional authority in this regard is gradually being restricted with the evolution of international law, in order to ensure a better protection of the individual in the face of arbitrary acts of States. Thus, at the current stage of the development of international human rights law, this authority of the States is limited, on the one hand, by their obligation to provide individuals with the equal and effective protection of the law and, on the other hand, by their obligation to prevent, avoid and reduce statelessness.12 The Court considers that the peremptory legal principle of the equal and effective protection of the law and non-discrimination determines that, when regulating mechanisms for granting nationality, States must abstain from producing regulations that are discriminatory or have discriminatory effects on certain groups of population when exercising their rights. Moreover, States must combat discriminatory practices at all levels, particularly in public bodies and, finally, must adopt the affirmative 12

Para. 140.

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measures needed to ensure the effective right to equal protection for all individuals.13 States have the obligation not to adopt practices or laws concerning the granting of nationality, the application of which fosters an increase in the number of stateless persons. This condition arises from the lack of a nationality, when an individual does not qualify to receive this under the State’s laws, owing to arbitrary deprivation or the granting of a nationality that, in actual fact, is not effective. Statelessness deprives an individual of the possibility of enjoying civil and political rights and places him in a condition of extreme vulnerability.14 The Court considers it should mention that the obligation to respect and ensure the principle of the right to equal protection and nondiscrimination is irrespective of a person’s migratory status in a State. In other words, States have the obligation to ensure this fundamental principle to its citizens and to any foreigner who is on its territory, without any discrimination based on regular or irregular residence, nationality, race, gender or any other cause.15 The Court considers that the Dominican Republic failed to comply with its obligation to guarantee the rights embodied in the American Convention, which implies not only that the State shall respect them (negative obligation), but also that it must adopt all appropriate measures to guarantee them (positive obligation), owing to the situation of extreme vulnerability in which the State placed the Yean and Bosico children, because it denied them their right to nationality for discriminatory reasons, and placed them in the impossibility of receiving protection from the State and having access to the benefits due to them, and since they lived in fear of being expelled by the State of which they were nationals and separated from their families owing the absence of a birth certificate.16 Baruch Ivcher Bronstein v. Peru (2001)17 This third and final case touched on many issues, ranging from the right to a  fair trial to the right to freedom of expression. It is mainly relevant for our purposes because nationality was also at stake – more particularly the 13 14 15 16 17

Para. 141. Para. 142. Para. 155. Para. 173. Serie C No. 74. Judgment of 6 February 2001.

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arbitrary deprivation thereof. According to the Inter-American Commission on Human Rights, which submitted an application to the Court against Peru, ‘the State arbitrarily deprived Mr. Ivcher Bronstein, naturalized Peruvian citizen… Director and President of Channel 2…of the Peruvian television network of his nationality title, in order to remove him from the editorial control of the said channel and restrict his freedom of expression, which he manifested by denouncing grave violations of human rights and acts of corruption’.18 The Court’s observations on nationality in a strict sense are rather few. It concluded that since Ivcher’s naturalization certificate was annulled thirteen years after it had been granted, while Peruvian law only allowed annulment within six months after becoming a national, ‘the [Peruvian] State failed to comply with the provisions of its domestic legislation and arbitrarily deprived Mr. Ivcher of his nationality, violating Article 20(3) of the Convention’.19 The judgment is relevant as it is the Court’s only case featuring the arbitrary deprivation of nationality. But since the Court did not offer any further guidance on what constitutes arbitrary deprivation, the decision will presumably have little impact on the development of the law on this matter.20 18 19 20

Para. 3. Para. 95. See generally on Ivcher Bronstein, I. Palma Umaña, “La negación del derecho a la nacionalidad y sus consecuencias. Una revisión de los casos presentados,” Tesis de grado para optar por el título de Licenciatura en Derecho (Universidad de Costa Rica) (2009). For observations on the concept of arbitary deprivation under international law, see Secretary General of the un, “Human rights and arbitrary deprivation of nationality,” (2009); G.-R. de Groot, “Survey on Rules on Loss of Nationality in International Treaties and Case Law,” 20–22.

Chapter 4

On Modes of Acquisition and Loss of Nationality

The European Union Democracy Observatory on Citizenship Typology

This chapter serves to explain the typology, methodology and overall structure of the country analyses in Chapter 5. First of all, the following short-hand formulas will be used in referring to relevant Articles from national legislation: ant  =  Antigua and Barbuda; arg  =  Argentina; bah  =  Bahamas; bar = Barbados; bel = Belize; bra = Brazil; can = Canada; chi = Chile; col  =  Colombia; cos  =  Costa Rica; cub  =  Cuba; dom  =  Dominica; dor  =  Dominican Republic; ecu  =  Ecuador; els  =  El Salvador; gre  =  Grenada; guy  =  Guyana; hai  =  Haiti; hon  =  Honduras; jam  =  Jamaica; gua  =  Guatemala; mex  =  Mexico; nic  =  Nicaragua; pan = Panama; par = Paraguay; per = Peru; stk = Saint Kitts and Nevis; stl = Saint Lucia; stv = Saint Vincent and the Grenadines; sur = Surinam; tri = Trinidad and Tobago; uru = Uruguay; ven = Venezuela. The United States is referred to with the commonly used three-letter abbreviation ina (Immigration and Naturalization Act). It is important to add that certainly not all countries have a Nationality or Citizenship Act proper. In that case I have nonetheless chosen to use the abbreviated version for the most important document relating to citizenship, in addition to the Constitution. Thus, the Costa Rican ‘Law on Options and Naturalizations’ is referred to as ‘cos’. And although Decree no. 358 of 1944, as currently still in force in Cuba, is also not technically called a Nationality Act, it is the most important document on Cuban citizenship besides the Constitution, and it is therefore referred to in its abbreviated form as ‘cub’. Decrees that are less important, for example because they only address one particular subject, are generally not abbreviated. See for example ‘Decree 3213/84’ for Argentina. The only country missing in the list of abbreviations is Bolivia. The legislation pertaining to Bolivian nationality is so scattered that no law can be identified as being the principal document on the matter. As most countries in the Western Hemisphere also have constitutional provisions on nationality, the term ‘Constitution’ is abbreviated with ‘Const’. Moreover, in line with the reference system used by the online eudo databases on the modes of acquisition and modes of loss of citizenship in Europe, only the Articles of the citizenship law currently in force in a specific country

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004276413_005

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are included. For example ‘col 1(1)a’ refers to Article 1, paragraph 1, subsection a of the Colombian Nationality Act, as currently in force. Any general references to ‘other countries’ should be understood as other countries in the Western Hemisphere, unless otherwise indicated. Since this book follows the eudo Citizenship methodology, provisions from legal texts other than the Constitutions and citizenship-related instruments are not mentioned separately. This includes, most importantly, the Civil Codes of the various countries. The principal reason for this is a technical one, in that the online eudo databases contain hyperlinks to the legal texts, the relevant Articles of which are listed for each ground for acquisition and loss. This system allows users to check the accuracy of the databases for themselves. The eudo website, however, does not currently link to individual Articles from Civil Codes (or secondary legislation on nationality for that matter). While this should not necessarily be of direct concern in this book, it is nonetheless hoped that the results from this publication might contribute to developing more concrete ideas and plans to expand the European databases to include the global level. For this reason it was considered more opportune to follow eudo strictly in this matter and to leave the Civil Codes as they are. Just to demonstrate how and when a Civil Code can play a role in nationality law, the Civil Code of Argentina is briefly referred to in the chapter on that country. As for the quotation system used, the footnotes either refer to the general bibliography, in which case citations are quoted in full the first time and mention only the author and title in subsequent footnotes, or they refer to the country bibliography with core publications listed at the end of each country chapter. In the latter case, footnotes only refer to the author and, if necessary to avoid confusion, to the year of publication.1 Journal titles are also abbreviated in the footnotes but not in the general and country bibliographies. It may be useful to elaborate briefly on how these bibliographies were created. The geographical and linguistic scope of this book implies that it is impossible to read all the nationality-related publications on the subject for the whole American Hemisphere. The country bibliographies thus serve the purpose of, on the one hand, listing the publications that were used extensively; the remainder of the publications, on the other hand, are meant as further reading that will permit greater insight into either current nationality law or its historical development in the respective countries. These latter publications 1 Since some publications are relevant for both Part 1 and 2 of this book, there is occasionally some overlap between the general bibliography and the individual country bibliographies.

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have not been studied in detail, but neither are they simply ‘endnote’-generated references copied from online catalogues. Apart from very few exceptions, all of the books and articles listed have passed through my hands, however briefly sometimes, and are in my view worthy of being consulted by anyone wishing to gain a better (historical) understanding of the subject.2 In some instances, and in particular with regard to the somewhat more obscure publications, a concise description of the content is given in brackets. This was principally done to help readers in deciding whether it is worth the effort looking them up, despite their possibly difficult accessibility. Books that were difficult to categorize were listed under the country in which they were published. Thus, the 1906 Convention Establishing the Status of Naturalized Citizens who Again Take up Their Residence in the Country of Their Origin (the ‘Rio de Janeiro Convention’)3 is only briefly referred to in the bibliography on Chile, because a Chilean author paid considerable attention to it. Five different languages are spoken in the Western Hemisphere, to wit Dutch, English, French, Portuguese and Spanish.4 To the extent that this was possible, the book has used materials in the original languages and all information has been transposed into English. Although this was of course done to the best of my abilities, the use of so many foreign languages may occasionally have led to misinterpretation and/or incorrect translation – a danger that always lurks in doing comparative research. The chapters on the two largest English-speaking countries – Canada and the United States – are slightly more extensive due to the greater accessibility of materials in English as well as the fact that I was based in North America while conducting this project. 2 In some cases materials have been included that were not available at the two institutions where I spent most of my time – the Library of Congress in Washington, dc and the Instituto de Investigaciones Jurídicas in Mexico City. 3 Rio de Janeiro, 13 August 1906. 4 Dialects and different creole languages, although very common throughout the American Hemisphere, were not relevant for this study. This may also be the right occasion to mention that since Dutch is not widely spoken, relevant publications in this language will not be referred to if publications addressing the same subject are available in English or another major language. Readers of Dutch might nonetheless find the following background reading useful: O. Vonk, “Latijns-Amerikaanse Spanjaarden en het Europees burgerschap,” mr, no. 5 (2006); O. Vonk, “De rol van dubbele nationaliteit voor toegang tot het Unieburgerschap en voor rechts- en forumkeuzebevoegdheid in het Europese internationaal privaatrecht,” nj, no. 27 (2011); O. Vonk and K. Hendriks, “Staatloosheid in Nederland,” (Den Haag: unhcr, 2011); G.-R. de Groot and O. Vonk, “Genovese tegen Malta: niet discrimineren bij toekennen nationaliteit,” a&mr 3, no. 3 (2012).

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Although the book’s principal objective is to map the grounds for acquisition and loss in the countries belonging to the Western Hemisphere, the descriptive analysis will occasionally be supplemented by a normative one. This value-based assessment will primarily take place against the background of international norms on protection against statelessness. Three legal instruments are particularly important in this respect. The 1954 Convention Relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness, and the 1969 American Convention on Human Rights.5 The Contracting States to these three Conventions are the following. For the 1954 Convention: Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, Saint Vincent and the Grenadines, Trinidad and Tobago, and Uruguay.6 For the 1961 Convention: Bolivia, Brazil, Canada, Costa Rica, Ecuador, Guatemala, Honduras, Jamaica, Nicaragua, Panama, Paraguay, and Uruguay.7 For the 1969 American Convention on Human Rights: Argentina, Barbados, Bolivia, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam, Trinidad and Tobago, Uruguay, and Venezuela.8 The 1969 Convention was the first regional instrument to reaffirm the universal promise of Article 15 of the Universal Declaration on Human Rights (udhr) of the right to nationality. Article 20 of the American Convention reads as follows: 1. 2. 3.

Every person has the right to a nationality; Every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality; No one shall be arbitrarily deprived of his nationality or of the right to change it.

The text of Articles 20(1) and 20(3) mirrors the language of udhr Article 15 with slight changes. Article 20(2) of the American Convention, however, guarantees the acquisition of nationality of the country of birth (iure soli) if a person does not have the right to another nationality. Although it affirms the first 5 See in detail O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness.” 6 http://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20V/V-3.en.pdf. 7 http://treaties.un.org/pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=V-4 &chapter=5&lang=en. 8 http://treaties.un.org/Pages/showDetails.aspx?objid=08000002800f10e1.

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alternative safeguard against statelessness provided in Article 1(1) of the 1961 Convention,9 the 1969 Convention gives rise to a stricter standard than Article 1(1).10 This clear choice for a default ius soli rule can be explained by the strong preference for ius soli for the acquisition of nationality at birth in the Americas. The provision seems to allow the interpretation that a State is not obliged to grant its nationality to stateless persons born in the territory if they have the right to acquire another nationality, e.g. by declaration of their parent(s). Indeed, this exception on ius soli for otherwise stateless children has been explicitly accepted by the recent unhcr Guidelines on Statelessness.11 Something similar has been argued by Manfred Nowak in his commentary on the 1966 International Covenant on Civil and Political Rights (iccpr). In respect of Article 24(3) of that Convention, Nowak concludes that it ‘grants at least a subsidiary jus soli for all children born or found on the territory of a State party who would be stateless without recognition of this right’.12 This right is subsidiary, according to Nowak, because it only applies ‘when the child does not already have a claim – e.g., due to filiation or to a declaration by his or her parents – to some other nationality’.13 In this connection, it is relevant to remark that there may be a discrepancy between nationality law in theory and in practice. unhcr Guidelines on Statelessness No. 1 makes pertinent observations on this issue. The definition of a stateless person under Article 1(1) of the 1954, a definition which has become part of customary international law, is ‘a person who is not considered as a national by any State under the operation of its law’. The Guidelines then explain how statelessness is to be determined: Establishing whether an individual is not considered as a national under the operation of its law requires a careful analysis of how a State applies its nationality laws in an individual’s case in practice and any review/ appeal decisions that may have had an impact on the individual’s status. This is a mixed question of fact and law. 9

The other alternative safeguard is found in Article 4 of the 1961 Convention, which provides for acquisition iure sanguinis. 10 See para. 35 of unhcr, “Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1–4 of the 1961 Convention on the Reduction of Statelessness,” (2012). 11 See para. 35 of Guidelines on Statelessness No. 4. 12 M. Nowak, U.N. Covenant on Civil and Political Rights, iccpr Commentary, 2nd ed. (Kehl: N.P. Engel, 2006), 561. 13 Ibid.

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Applying this approach to examining an individual’s position in practice may lead to a different conclusion than one derived from a purely objective analysis of the application of nationality laws of a country to an individual’s case. A State may not in practice follow the letter of the law, even going so far as to ignore its substance. The reference to “law” in the definition of statelessness in Article 1(1) therefore covers situations where the written law is substantially modified when it comes to its implementation in practice.14 It is thus important to keep the above in mind when drawing conclusions from the country analyses. Especially where statelessness is concerned, the technical and theoretical examination as conducted in this book only provides part of the picture. To answer the question how and if stateless persons are protected in reality requires a more in-depth and practice-oriented approach than is possible here. In connection with the normative analysis referred to just now, it is mentioned that in 2013 eudo Citizenship completed an eighteenth-month research project called ‘Access to Citizenship and its Impact on Immigrant Integration’ (acit), which ‘compared how European states regulate the acquisition of citizenship and the impact of citizenship on the socio-economic and political participation of immigrants’.15 One of the innovative features of acit in comparison with the ‘modes of acquisition database’ is in fact the normative assessment made – that is, countries are given a score on a scale from 0 to 1 based on the inclusiveness of their policies as regards the acquisition of citizenship.16 Apart from the subject of statelessness, no such attempt at making a normative assessment of the grounds for acquisition is made in this study, for obvious reasons relating to time and resources.

14

Para. 16 and 17 of unhcr, “Guidelines on Statelessness No. 1.” The two remaining unhcr guidelines are “Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person,” (2012) and “Guidelines on Statelessness No. 3: The Status of Stateless Persons at the National Level,” (2012). 15 http://eudo-citizenship.eu/about/acit. 16 http://eudo-citizenship.eu/images/acit/acit_report_eu%20level%20summary.pdf. For interactive charts, see http://ind.eudo-citizenship.eu/acit/topic/citlaw. Using the eudo Citizenship Law Indicators on acquisition and loss of citizenship – the so-called ‘citlaw indicators’ – a recent analysis shows that European citizenship regimes configure along two dimensions that can be associated with territorial and ethnocultural inclusions. See M. Vink and R. Bauböck, “Citizenship configurations: Analysing the multiple purposes of citizenship regimes in Europe,” Comparative European Politics 11, (2013).

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Provided below is an elaborate schematic overview of the twenty-seven ‘modes of acquisition’ and fifteen ‘modes of loss’ as developed by eudo Citizenship.17 In following this structure for the countries of the Western Hemisphere it was already seen in Chapter 1, Section 2 that this study additionally relies on the technical terms developed by the Observatory. Although the essential terms have already been explained there, readers are again reminded that the online ‘Citizenship Glossary’ provides a more detailed analysis.18 With regard to the tables it is stressed that in trying to capture the essence of each country’s nationality legislation, the overviews can never serve as a substitute for the original text. In other words, the tables do not aim at complete comprehensiveness, and they may have summarized the relevant information in a considerably condensed form so as to allow cross-country comparisons to be drawn. One of the principal aims of the systematic methodology adopted throughout this book is to present the findings in such a way that the relevant differences between the thirty-five countries become visible. Trying to attain this goal has sometimes been at the expense of adhering to the literal wording of the different legislative provisions. Transitory provisions, finally, are not included in the analysis. In conclusion, therefore, it is always recommended to check the analysis against the original legislation, although it is admitted that many of the materials used are not available in English. 17 18

M. Vink, O. Vonk, and I. Honohan, “Modes of Acquisition of Citizenship in Europe” and “Modes of Loss of Citizenship in Europe.” See http://www.eudo-citizenship.eu/databases/citizenship-glossary/glossary.

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The EUDO Citizenship Typology Modes of acquisition and loss: the European Union Democracy Observatory (eudo) typology

Mode id Short description

Target person

Focus

Acquisition A01a

Descent (born in country)

A01b

Descent (born abroad)

A02a

Birth in country (2nd generation)

A02b

Birth in country (3rd generation)

A03a

Foundlings

A03b

Born stateless

Does the country permit parents to confer their citizenship on their child who is born in the territory of the country and, if so, under which conditions? Person born to a citizen of Does the country permit parents a country (birth abroad) to confer their citizenship on their child who is born abroad and, if so, under which conditions? Does the country provide for a Person born in a country child to acquire citizenship by (irrespective of the citizenship and birthplace birth in the territory irrespective of the birthplace of his/her of his/her parents) parents and, if so, under which conditions? Person born in a country to Does the country provide for a a parent who was also born child to acquire citizenship by birth in the territory if one parent in that country was also born there and, if so, under which conditions? Does the country have a Foundling found in a safeguard that provides for the country of unknown grant of citizenship to a foundling parentage of unknown parentage found in the territory of the country and, if so, under which conditions? Does the country have a Person born in a country safeguard that provides for the who would otherwise be grant of citizenship to an stateless otherwise stateless child and, if so, under which conditions? Person born to a citizen of a country (birth in that country)

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Modes of acquisition and loss: the European Union Democracy Observatory (eudo) typology (cont.)

Mode id Short description

Target person

Focus

Acquisition A04

Establishment of paternity

A05

Birth in country (acquisition after birth)

A06

Ordinary naturalization

A07

Socialisation based acquisition

A08

Spousal transfer

A09

Filial transfer

A10

Adoption

Does the country provide for the acquisition of citizenship if paternity is established after birth and, if so, under which conditions? Does the country provide for acquisition of citizenship after birth by a child born in the territory and irrespective of the birthplace of his/her parents and, if so, under which conditions? Under which conditions does the Person with a certain country provide for ordinary period of residence in a naturalization based on residence? country Does the country provide for Person with a certain acquisition of citizenship by a period of residence or person who as a minor has had a schooling as a minor in a certain period of residence or country schooling in the country and, if so, under which conditions? Person who is the spouse Does the country provide for or registered partner of a acquisition of citizenship by the citizen of a country spouse or registered partner of a person who is already a citizen and, if so, under which conditions? Does the country provide for Person whose parents are acquisition of citizenship by the now citizens of a country, but were not at the time of child of a person who is already a citizen and, if so, under which the person’s birth conditions? Person who is adopted by a Does the country provide for citizen acquisition of citizenship by a person who is adopted by citizens and, if so, under which conditions? Person born to a citizen of a country whose descent is established by recognition or judicial establishment of maternity/paternity Person born in a country (acquisition after birth and irrespective of the citizenship and birthplace of his/ her parents)

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The EUDO Citizenship Typology

Mode id Short description

Target person

Focus

Does the country provide for acquisition of citizenship by a relative other than the spouse or child of a person who is already a citizen and, if so, under which conditions? Does the country provide for acquisition of citizenship by the spouse, child or grandchild of a former citizen and, if so, under which conditions? Does the country provide for extending the acquisition of citizenship to the spouse or registered partner and, if so, under which conditions? Does the country provide for extending the acquisition of citizenship to a child and, if so, under which conditions? Does the country provide for extending the acquisition of citizenship to a relative other than the spouse or child and, if so, under which conditions? Does the country provide for reacquisition of citizenship and, if so, under which conditions?

Acquisition A11

Transfer to other relatives

Person who is another relative of a citizen

A12

Transfer from former citizen

Person who is the spouse, child or grandchild of a former or deceased citizen

A13

Spousal extension

Person who is the spouse or registered partner of someone who acquires citizenship of a country

A14

Filial extension

Person who is the child of someone who acquires citizenship of a country

A15

Extension to other Person who is another relatives relative of someone who acquires citizenship of a country

A16

Reacquisition

A17

Restricted citizenship rights

Person who at some point in time was a citizen of a country and reacquires citizenship of that country Person whose citizenship rights are restricted

Does the country provide for acquisition of full citizenship by a person whose citizenship rights are restricted and, if so, under which conditions?

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Modes of acquisition and loss: the European Union Democracy Observatory (eudo) typology (cont.)

Mode id Short description

Target person

Focus

Acquisition A18

A19

A20

A21

A22

A23

A24

Does the country provide for acquisition of citizenship by a person who is a citizen of a specific country and, if so, under which conditions? Cultural affinity Person who has a cultural Does the country provide for affinity to a country acquisition of citizenship by a person who has an affinity to its culture and, if so, under which conditions? Does the country provide for Presumed citizens Person who acted as a citizen of a country in good acquisition of citizenship by a faith and/or was presumed person who has acted as a citizen in good faith or was treated as a to be a citizen for some presumed citizen for some time time and, if so, under which conditions? Very long Person who has resided in Does the country provide for facilitated acquisition of citizenresidence a country for a very long ship by a person who has resided time in the country for a very long time and, if so, under which conditions? Refugees Person who is a recognized Does the country facilitate the refugee naturalization of a refugee in its territory and, if so, under which conditions? Person who is stateless or Does the country facilitate the Stateless or of unclear citizenship naturalization of a stateless person unclear in its territory and, if so, under citizenship which conditions? Special Person who has special Does the country provide for achievements achievements for a country acquisition of citizenship by a person who has special achievements and, if so, under which conditions? Citizenship of a specific country

Person who possess the citizenship of a specific country

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The EUDO Citizenship Typology

Mode id Short description

Target person

Focus

Does the country provide for acquisition of citizenship by a person who is in the public service and, if so, under which conditions? Does the country provide for acquisition of citizenship by a person who has special financial assets or invests money in the country and, if so, under which conditions? Does the country provide for acquisition of citizenship for other reasons and, if so, under which conditions?

Acquisition A25

Public service

Person who is in the public service of a country

A26

Financial assets

Person who has special financial assets or invests money in a country

A27

Acquisition of citizenship for other reasons

Person who acquires citizenship for other reasons

Mode id Short description

Target person

Focus

Loss L01

Renunciation of citizenship

L02

Residence abroad

L03

Service in foreign army

Does the country provide for a citizen to voluntarily renounce his/her citizenship and, if so, under which conditions? Person who resides outside Does the country provide for involuntary loss of citizenship the country of which he/ for a person who resides abroad she is a citizen and, if so, under which conditions? Does the country provide for Person who renders military service to a foreign involuntary loss of citizenship for a person who renders country military service to a foreign country and, if so, under which conditions? Person who voluntarily renounces the citizenship of his/her country

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Modes of acquisition and loss: the European Union Democracy Observatory (eudo) typology (cont.)

Mode id Short description

Target person

Focus

Person who renders services to a foreign country

Does the country provide for involuntary loss of citizenship for a person who renders services to a foreign country and, if so, under which conditions? Does the country provide for involuntary loss of citizenship for a person who acquires a foreign citizenship and, if so, under which conditions? Does the country provide for involuntary loss of citizenship for a person who acquired citizenship at birth and does not renounce his/her foreign citizenship and, if so, under which conditions? Does the country provide for involuntary loss of citizenship for a person who is disloyal to the country or whose conduct is seriously prejudicial to the vital interests of the country and, if so, under which conditions? Does the country provide for involuntary loss of citizenship for a person who commits criminal offences (other than acquisition of citizenship by fraud) and, if so, under which conditions? Does the country provide for involuntary loss of citizenship for a person who has acquired citizenship by fraud and, if so, under which conditions?

Loss L04

Other service for foreign country

L05

Acquisition of Person who acquires a foreign citizenship foreign citizenship

L06

Non-renunciation foreign citizenship (acquisition by birth)

Person who acquired citizenship of his/her country by birth and retains a foreign citizenship

L07

Disloyalty or treason

Person who is disloyal to the country of which he/ she is a citizen or whose conduct is seriously prejudicial to the vital interests of that country

L08

Other offences

Person who commits other (criminal) offences

L09

Fraudulent acquisition

Person who has acquired citizenship by fraud

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The EUDO Citizenship Typology

Mode id Short description

Target person

Focus

Loss L10

L11

L12

L13a

L13b

L14

Does the country provide for involuntary loss of citizenship for a person who acquired citizenship by naturalization or declaration and does not renounce his/her foreign citizenship and, if so, under which conditions? Loss of citizenship Person whose parents lose Does the country provide for by parent citizenship of a country involuntary loss of citizenship for a person whose parents lose citizenship of the country and, if so, under which conditions? Does the country provide for Loss of citizenship Person whose spouse or involuntary loss of citizenship for by spouse registered partner loses a person whose spouse or citizenship of a country registered partner loses citizenship of the country and, if so, under which conditions? Person whose descent from Does the country provide for Annulment of a citizen is annulled involuntary loss of citizenship for maternity/ a person whose descent from a paternity citizen is annulled and, if so, under which conditions? Adoption Person who is adopted by a Does the country provide for citizen of another country involuntary loss of citizenship for a person who is adopted by a citizen of another country and, if so, under which conditions? Does the country provide for Establishment Person who acquired involuntary loss of citizenship for foreign citizenship citizenship of his/her country as a foundling or as a person whose possession of a foreign citizenship is established a presumptively stateless and, if so, under which person and whose foreign conditions? citizenship is later established Non-renunciation foreign citizenship (acquisition by naturalization)

Person who acquired citizenship of his/her country by naturalization or declaration and retains a foreign citizenship

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Modes of acquisition and loss: the European Union Democracy Observatory (eudo) typology (cont.)

Mode id Short description

Target person

Focus

Person who loses citizenship of his/her country for other reasons

Does the country provide for involuntary loss of citizenship for other reasons and, if so, under which conditions?

Loss L15

Loss for other reasons

Part 2 Grounds for Acquisition and Loss of Citizenship in the Independent Nation-States of the Western Hemisphere

∵

Chapter 5

Introduction to the Country Analyses Having reached the second part of the book, it needs to be explained what the following thirty-five short country chapters hope to achieve – and perhaps more importantly what not. The descriptive analyses have as their principal aim to identify the most salient features of each country’s nationality legislation as described in condensed form in the tables on the acquisition and loss of citizenship. Each chapter begins with a few remarks on the history of the country since the European conquest and the year it started to enact legislation on nationality matters.1 The chapters on the countries with which Spain signed a dual nationality treaty generally end in a similar fashion, namely by mentioning when such treaties, as well as their additional protocols, entered into force. The dual nationality treaties were considered separate arrangements that did not deserve special mention under mode A18 (‘persons who possess the citizenship of a specific country’). In respect of Argentina, for example, A18 reads ‘no provision’, although dual nationality treaties have been concluded with both Italy and Spain. It could be argued that the introductions should have been longer and more comprehensive, but they were nonetheless deliberately kept short for the following reasons. To start with, there is an abundant literature on the history of the Western Hemisphere, and excellent scholarly materials are increasingly found online; the dual nationality arrangements between Spain and Latin America, in turn, have been analysed extensively by myself as well as others in recent years;2 and finally, it seemed superfluous to provide comprehensive historical overviews of each country’s nationality legislation. Not only has this already been accomplished by several other authors in an exemplary way, but it has also been done in different languages. The German tradition, with scholars like Hellmuth Hecker and Peter Moosmayer, has been particularly 1 The main sources used for the general historical overviews were Las Declaraciones de Independencia (edited by Ávila, Dym and Pani), the Cambridge History of Latin America (edited by Leslie Bethell), and the online Country Studies Series of the Federal Research Division of the Library of Congress. On the latter, see http://lcweb2.loc.gov/frd/cs/cshome .html. 2 O. Vonk, Dual Nationality in the European Union; D. Cook-Martín, The Scramble for Citizens. Dual Nationality and State Competition for Immigrants.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004276413_006

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committed to providing such overviews and many of their mid-twentieth century publications are referred to throughout this study.3 The bibliography provided below is concerned with classic and often multivolume works on comparative nationality law. They tend to have a broad geographical scope, and in some cases they cover all the countries of the world. Only books written in a language I could understand were listed, so it is not excluded that similar works exist in yet other languages. A short description of the content of each work is given in brackets. By no means having the ambition to provide a complete historical overview, the separate country chapters focus in particular on the nationality laws as they stand now. Information on the historical development of these laws can be obtained by consulting the bibliographical references. Of the books listed in the bibliography, I only consistently refer to Hecker in the country chapters because his is the most complete and, in comparison with other sources, most recent overview available on the legislation per country.4 It is also worth mentioning that while some countries have a long and rich tradition of academic scholarship in the field of nationality law, others do not. Countries that fall into the latter category are not exclusively the Caribbean countries that only became independent in the second half of the twentieth century, but it also includes some Latin American countries. In the chapter on Uruguay, for instance, Moosmayer is quoted as saying that, almost 150 years after independence, Uruguayan doctrine was still not interested in comprehensively analysing its own nationality legislation. For the English-speaking Caribbean, in turn, the limited attention paid to nationality law is particularly striking. While many master and doctoral theses have been written on the nationality legislation of different Latin American countries, this is not the case for the former British colonies. The University of the West Indies, for

3 Other important German authors from this period are, among others, Karl-Alexander Hampe, Hermann Meyer-Lindenberg and Philipp Schmidt-Schlegel. Moreover, Alexander Bergmann together with Murad Ferid published country-by-country studies on nationality law, something which is currently being continued by Dieter Henrich. However, since the ‘Bergmann and Ferid’ can only be accessed by paying a substantial yearly fee or buying the $900 book, it is not listed in the bibliography below as a core publication. See https://www .bergmann-aktuell.de/produkt/site/90000-0. 4 H. Hecker, Das Staatsangehörigkeitsrecht von Amerika. The book contains comprehensive overviews of nationality-related legisation dating back to the time of the various countries’ independence. Unfortunately, Hecker’s introductory commentaries for the individual countries are always very brief.

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example, informed me that no theses have been written on the subject at any of the University’s three branches.5 Seen from this perspective, it is only logical that the different country bibliographies are somewhat out of balance – with the bibliographies for the larger and older countries as well as Dutch-speaking Surinam being considerably more extensive. In the absence of any substantial scholarship on nationality law in the former British Caribbean, most of the information about the different islands comes from relative outsiders like Fransman and Hecker. (a) Historical Reference Works in the Field of Comparative Nationality Law Bourbousson, E. Traité général de la nationalité dans les cinq parties du monde. Paris: Sirey, 1931. [One-volume work covering the entire world; looks for each country at (I) ‘Statut de la femme mariée’; (II) ‘Naturalisation’; and (III) ‘Perte de nationalité’; completely in French.] de Lapradelle, A. and J.P. Niboyet. Repertoire de droit international. Paris: Sirey, 1931. [Eleven-volume set of which volume 9 is partly concerned with nationality; covers all the countries in the world; completely in French.] Flournoy, Richard W. and Manley O. Hudson. A collection of nationality laws of various countries. New York: Oxford University Press, 1929. [One-volume study covering the entire world; contains a short introduction (‘editors’ note’) for each country and bibliographical references; although reprinted in later years by other publishers, it has never been updated.] Kojanec, Giovanni. La Cittadinanza nel mondo. Padova: cedam, 1977. [Five-volume set that collects the nationality legislation of all the countries in the world; does not contain any commentary or bibliographical references; completely in Italian.] Lehr, Ernest. La nationalité dans les principaux états du globe. Paris: Pedone, 1909. [Completely in French; covers fifty-one countries and analyzes four subject areas: (A) ‘Nationalité d’origine’; (B) ‘Acquisition de la nationalité’; (C) ‘Perte de la nationalité’; and (D) ‘Recouvrement de la nationalité’.] Lichter, Matthias. Die Staatsangehörigkeit nach deutschem und ausländischem Recht (geltendes und früheres Recht nebst Rechtsvergleichung) 2nd and fully revised ed. Berlin/Köln: Heymanns, 1955. [One-volume book dealing with the nationality legislation of foreign countries (‘Das Staatsbürger- und Staatsangehörigkeitsrecht 5 That is, in Barbados, Jamaica, and Trinidad and Tobago. This information was obtained from the library staff while visiting Trinidad and Tobago.

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fremder Staaten’) from page 559; Lichter rephrases the grounds for acquisition and loss of nationality of the different countries in considerable detail; completely in German.] Marinho, Ilmar Penna. Tratado sobre a nacionalidade. Rio de Janeiro: Departamento de Imprensa Nacional, 1956. [Four-volume set consisting on average of 700 pages; volume 2 is concerned with comparative nationality law (‘Do direito comparado da nacionalidade’); with many bibliographical references; completely in Portuguese.] Polizeibehörde der Freien und Hansestadt Hamburg. Die in den Europäischen Staaten geltenden Gesetze über die Erwerbung und den Verlust der Staatsangehörigkeit. Berlin: Hoffmann, 1898. [One-volume book that focuses on the nationality laws of the European countries; considerable attention is also paid from page 347 to German nationality law prior to 1871 (‘Die vor dem 1. Januar 1871 in den deutschen Bundesstaaten in Kraft gewesenen Staatsangehörigkeitsgesetze’); completely in German.] Sieber, J. Das Staatsbürgerrecht im internationalen Verkehr, seine Erwerbung und sein Verlust. Bern: Stämpfli, 1907. United Nations Legislative series. Laws concerning nationality (as well as United Nations Legislative Series, Supplement to the volume on Laws concerning nationality 1954, New York 1959). New York: United Nations, 1954. [One-volume work covering the entire world; only contains the countries’ legislative texts and no commentary; legislation is in English or, if the country is French-speaking, in French.] Weiss, André. Traité théorique et pratique de droit international privé. Tome premier. 2nd ed. Paris: Sirey, 1907. Zeballos, E.S. La nationalité au point de vue de la législation comparée et du droit privé humain: conférences faites à la Faculté de droit et des sciences sociales de l’Université de Buenos Aires. Paris: Sirey, 1914. [Classic work consisting of five volumes of around 1,000 pages each; information on the Western Hemisphere can be found in all the volumes; completely in French.]

(b) Historical Reference Works on Nationality Law in Latin America García Haro, Ramón. La nacionalidad en América hispana. Madrid: Editorial Reus, 1922. [66 p; contains a comparative analysis of the nationality laws of Latin American countries.] Gläser, Karl. Erwerb und Verlust der Staatsangehörigkeit in Hispano-Amerika. Leipzig: Universitätsverlag Robert Noske, 1930. Instituto Argentino de Derecho Internacional. La Nacionalidad en las Républicas Americanas. Buenos Aires: Centro de Estudios de Derecho Internacional Público,

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1936. [115 p; a general overview of acquisition and loss in the Western Hemisphere at the beginning of the book is followed by each country’s legislation.] Moosmayer, Peter. Der Gebietsgrundsatz im Staatsangehörigkeitsrecht ( jus soli): unter besonderer Berücksichtigung der südamerikanischen Staaten. Frankfurt am Main: Alfred Metzner Verlag, 1963.[182 p; book can be considered a summary of the separate volumes published by Metzner Verlag on the countries of Latin America, and listed separately in the country bibliographies below.] Pérez Rodríguez, M. “La atribución de la nacionalidad en el derecho comparado iberoamericano.” In Liber amicorum: colección de estudios jurídicos en homenaje al Prof. Dr. D. José Pérez Montero, edited by M. Díez de Velasco and José Pérez Montero. 1107–1130. Oviedo: Universidad de Oviedo, 1988. Vetancourt Aristeguieta, Francisco. Nacionalidad, naturalización y ciudadanía en Hispano-América. Caracas: El Cojo, 1957. [370 p; one of the very few works by a Latin American author that also pays attention to the Spanish-speaking Caribbean – that is, Cuba and the Dominican Republic.]

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Antigua and Barbuda (A&B) Antigua – its name comes from Christopher Columbus who upon sighting the island in 1493 named it after Santa María de la Antigua1 – was settled by the English in 1632, formally became a colony in 1667, and became an independent commonwealth country called ‘Antigua and Barbuda’ on 1 November 1981.2 The relevant nationality legislation of the country is found in Chapter 8 of the 1981 Constitution and the 1982 Antigua and Barbuda Citizenship Act.3 This two-fold structure follows the set-up found in most Western Hemisphere countries, but A&B has additionally implemented two Acts that are more unique – the 2004 Millennium Naturalisation Act and the 2012 Citizenship by Investment Act.4 Similar forms of ‘investor citizenship’ had already been introduced by St Kitts in 1984 and Dominica in 1993, while Grenada followed suit in 2013. The chapters dedicated to those countries provide more information about this form of citizenship acquisition. A&B being primarily a ius soli country, children born in the country automatically become citizens. In addition to the general exception for children born to foreign diplomats, the law also makes an exception if one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. The latter exception seems rather far-fetched but is nonetheless found in a great number of other former British colonies in the Caribbean.5 Acquisition iure sanguinis is limited to the first generation born abroad. This limitation can create statelessness for the second generation born abroad if the nationality of the country of birth is not acquired or cannot be acquired. While international law does not dictate countries to adopt a ius soli or ius sanguinis regime, Article 4 of the 1961 Convention on the Reduction of Statelessness does require the Contracting State of which the parents are citizens to step in when a child born abroad would otherwise be stateless.6 1 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, a regional study (Washington, d.c.: Federal Research Division of the Library of Congress, 1987), 433. 2 Fransman, 814–820. 3 The Constitution and the Antigua and Barbuda Citizenship Act 1982 (No 17 of 1982) entered into force on 1 November 1981 and 19 August 1982, respectively. See http://pdba.georgetown.edu/con stitutions/antigua/antigua-barbuda.html and http://www.laws.gov.ag/acts/chapters/cap-22.pdf. 4 The 2004 Act entered into force on 28 June 2004 and is available at http://laws.gov.ag/ acts/2004/a2004-4.pdf. It is unclear from the text of the 2012 Act when it entered (or will enter) into force. See http://antiguainvestmentauthority.com/images/citizenship_act.pdf. 5 For example Barbados and St Kitts. This provision can be traced back to Article 4 of the bna 1948. See http://www.legislation.gov.uk/ukpga/1948/56/pdfs/ukpga_19480056_en.pdf. 6 O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness,” 53.

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By limiting the acquisition by descent to the first generation born abroad without any exceptions, A&B violates the 1961 Convention.7 (It is repeated here that normative assessments in all the country analyses are made irrespective of whether a country is party to the relevant international norm.) Mode A10 is noteworthy for its discrimination of women, since minors adopted by citizens of A&B automatically become citizens by virtue of the male adopter’s citizenship. Female citizens of A&B only transmit their nationality if the case is not one of joint adoption. This is the same for the Bahamas and Barbados. It will be seen that all other countries referring to joint adoption use gender-neutral phrases like ‘or in the case of joint adoption one of the adopters is a citizen’.8 Facilitated access to nationality for certain nationalities – i.e. Commonwealth citizens and citizens of Ireland – is a common feature of the English-speaking Caribbean. However, in the particular case of A&B, it is observed that the law refers only to Commonwealth citizens, not also to ‘citizens of the Republic of Ireland’ (A18).9 In reading the legislation, one has to be mindful of the different procedures for the acquisition of nationality – particularly in relation to registration. Sometimes registration is discretionary, sometimes it is by entitlement. Thus, the procedure under A08 is one of entitlement (‘the following persons shall be entitled…’), whereas that under A18 it is one of discretion (‘may…be registered at the discretion of the Minister…’). In respect of loss of nationality, A&B distinguishes between citizens by birth and naturalized citizens. Only the citizenship of the latter can be withdrawn. 7 This observation applies to other countries as well. Moreover, although the 1961 Convention states the following in Article 7(5), it is argued that this provision is to be interpreted restrictively considering the importance of statelessness prevention: ‘In the case of a national of a Contracting State, born outside its territory, the law of that State may make the retention of its nationality after the expiry of one year from his attaining his majority conditional upon residence at that time in the territory of the State or registration with the appropriate authority’. See also G.-R. de Groot, “Background Paper on Avoiding Statelessness caused by Loss or Deprivation of Nationality: Interpreting Articles 5–9 of the 1961 Convention on the Reduction of Statelessness and Relevant International Human Rights Norms,” (Geneva: unhcr, forthcoming). 8 For example guy 5(3). This is also the phrase currently used in Article 5(A)a of the 1981 bna. 9 Guyana and Jamaica, for example, do specifically refer to Irish citizens. Rose has remarked the following in respect of the general facilitated access to nationality for Irish citizens: ‘It is interesting to note that the registration procedure, which applies also in the uk, relates not only to Commonwealth citizens but also to citizens of the Republic of Ireland, an independent, sovereign, non-Commonwealth country. This is possibly a unique relationship’. A. Rose, “Nationality Law in Commonwealth Caribbean Countries,” 125.

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In a European context this would have entailed a violation of the 1997 European Convention on Nationality, since Article 5(2) imposes the principle of nondiscrimination between a country’s nationals, ‘whether they are nationals by birth or have acquired its nationality subsequently’. The 1961 Convention, on the other hand, allows differential treatment of naturalized citizens under some circumstances (e.g. in Article 7(4)). The rule that nationality which was renounced is nonetheless not lost if another citizenship is not acquired within six months is to be considered a best practice from the perspective of statelessness prevention, since by doing so A&B offers more protection than required by the international standards on protection against statelessness.10 Apart from one case under mode L08 – that is, relatively short imprisonment – the other grounds for loss can result in statelessness. In principle all of these grounds for loss, with the exception of L09, violate the international norms as they allow a person to be rendered stateless contrary to the main rule of Article 8(1) of the 1961 Convention which states that ‘A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless’.11 Article 8(2)b of the 1961 Convention explicitly allows countries to withdraw nationality, with the possibility of thereby rendering someone stateless, if citizenship was acquired by fraud (L09). However, it is worth noting that the Secretary General of the United Nations has stated that this ground for loss, as an exception to the general principle, needs to be narrowly construed.12 Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 27. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 814–820. 10 11

12

O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness,” 105. Britain also has this rule in Article 12 of the bna 1981. I leave aside the fact that the 1961 Convention permits exceptions under Article 8(3) if a country explicitly lodged a declaration for that purpose at the time of signature, ratification or accession. See ibid., 73 ff. See para. 27 of Secretary General of the un, “Human rights and arbitrary deprivation of nationality.”

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings

Born stateless

Establishment of paternity

A02b

A03b

A04

A03a

Birth in country (2nd generation)

A02a

A01b

Antigua and Barbuda

modesacq

No provision

ant 3(5), 3(8)

ant 3(1)

No provision

Const 113a

Const 113b–c

No provision

articles

n.a.

Registration (entitlement)

Automatic

n.a.

Automatic

Automatic

n.a.

procedure

Person is a newborn infant found in A&B of unknown parentage. Person is a minor or adult who was born in A&B and has always been stateless. Registration can be denied in the interests of defense or public order, if the person is sentenced to death or to a prison sentence of at least 12 months, is not of good character, is a danger to public safety, has been declared bankrupt, or has insufficient means to support him/herself. n.a.

Person is born abroad to a citizen who was born in A&B, or to a citizen who is in the service of the government. Person is born in A&B. Unless the child is born to a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

n.a.

conditions

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77

Birth in country (acquisition after birth) Ordinary naturalization

Socialization based acquisition Spousal transfer

A05

A07

A13

A11 A12

A09 A10

A08

No provision

ant 6, Schedule 2–3

No provision

articles

Const 114(1)b, 117 Filial transfer No provision Adoption Const 114(1)f, 117, ant 4 Transfer to other relatives No provision Transfer from former No provision citizen Spousal extension No provision

short description

idmode

A06

Antigua and Barbuda

modesacq

(Table continued)

n.a.

n.a. n.a.

Registration (entitlement) n.a. Automatic

n.a.

Naturalization (discretionary)

n.a.

procedure

n.a.

Person has been the spouse of a citizen, with common household, for 3 years. Other conditions: oath of loyalty. n.a. Person is a minor who is adopted by a citizen or, in case of joint adoption, by a male citizen. Other conditions: oath of loyalty. n.a. n.a.

Person has been resident in A&B for 12 months immediately prior to the application (exemption for British protected persons), as well as during 5 out of 7 years predating the 12-month period. Other conditions: good character, full capacity, intent to reside in A&B, and oath of allegiance. Minister is explicitly allowed to waive certain requirements. n.a.

n.a.

conditions

78 chapter 5

Restricted citizenship rights Citizenship of a specific country

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship

A17

A19 A20 A21 A22 A23

A18

A16

Filial extension Extension to other relatives Reacquisition

A14 A15

No provision No provision No provision No provision No provision

ant 3(3), 3(8)

No provision

Const 114(1)e, 117

No provision No provision

n.a. n.a. n.a. n.a. n.a.

Registration (discretionary)

n.a.

Registration (entitlement)

n.a. n.a.

Person is a Commonwealth citizen of full capacity and has been ordinarily resident in A&B, or has been in the service of the government, or has had partly such residence and partly such service for at least 5 out of 7 years immediately prior to the application. Minister is explicitly allowed to waive certain requirements. Registration can be denied in the interests of defense or public order, or if the person is sentenced to death or to a prison sentence of at least 12 months, is not of good character, is a danger to public safety, has been declared bankrupt, or has insufficient means to support him/herself. n.a. n.a. n.a. n.a. n.a.

Person is a former citizen who had to renounce citizenship in order to acquire or retain citizenship of another country. Other conditions: oath of loyalty. n.a.

n.a. n.a.

Antigua and Barbuda (A&B)

79

Antigua and Barbuda

short description

Special achievements Public service Financial assets

Acquisition of citizenship for other reasons

Antigua and Barbuda

short description

Renunciation of citizenship

Residence abroad Service in foreign army

modesacq

idmode

A24 A25 A26

A27

modesloss

idmode

L01

L02 L03

(Table continued)

procedure

No provision No provision

ant 7

articles

No provision

n.a. n.a.

Declaration

procedure

n.a.

No provision n.a. No provision n.a. Investment Act 5 Naturalization (discretionary)

articles

Person is or becomes a citizen of another country. Renunciation only takes effect after registration by the authorities. If citizenship of another country is not acquired within 6 months from the date of registration, the renunciation will become invalid. n.a. n.a.

conditions

n.a. n.a. Person is someone whose acquisition of citizenship would be in the special economic interest of A&B. Other conditions: oath of loyalty. n.a.

conditions

80 chapter 5

Other offences

Fraudulent acquisition

L09

ant 8, 9(1), 9(2)

ant 9(1)(a)(ii), 9(1)b, 9(2)

Withdrawal

Withdrawal

ant 8, 9(1)a(i), Withdrawal 9(1)c, 9(1)e, 9(2)

n.a.

No provision

L08

L07

L06

n.a.

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

L05

Withdrawal

No provision

Other service for foreign ant 9(1)d, 9(2) country

L04

Person acquired citizenship by naturalization or registration and has been convicted of treason. Or the person acquired citizenship by naturalization and engaged in activities prejudicial to the safety of A&B, or has been disloyal (in act or speech) towards A&B. Loss can result in statelessness. Person acquired citizenship by naturalization and has been convicted in any country for a criminal offence that carries the dealth penalty or imprisonment for at least 7 years (loss can result in statelessness), or has within 5 years of acquisition been sentenced in any country to imprisonment for at least 12 months (loss cannot result in statelessness). Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness.

n.a.

Person acquired citizenship by naturalization and has in any way assisted the enemy in a war in which A&B was engaged. Loss can result in statelessness. n.a.

Antigua and Barbuda (A&B)

81

short description

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship Loss for other reasons

idmode

L10

L15

L13b L14

L13a

L12

L11

Antigua and Barbuda

modesloss

(Table continued)

No provision

No provision No provision

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

No provision

No provision

procedure

articles

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

conditions

82 chapter 5

Argentina

83

Argentina The creation in 1776 of the new viceroyalty of Río de la Plata in the south of the continent had a great impact on the region,1 and it covered an area that is now occupied by Argentina, Uruguay, Paraguay, and Bolivia (the former Upper Peru). The inclusion of Upper Peru in the new viceroyalty, which provided Buenos Aires with the profits from the Potosí silver mine, ‘prepared the way for the permanent political division of the Andean zone’ and reinforced the demise of the viceroyalty of Peru.2 The political organization of Argentina has been called a long process, starting with the country’s assertion of autonomy on 25 May 1810.3 ‘A political declaration of independence’, however, ‘was not formulated until 1816, and a constitution was promulgated in 1853’.4 Argentina was relatively late in enacting specific legislation on nationality, as the first ‘Law on Nationality and Naturalization’ dates from 7 October 1857. In laying down the grounds for acquisition and loss of nationality in a separate law, and at the exclusion of the Constitution, Argentina departed from the Spanish tradition of having the Constitution deal with the matter.5 The current rules on Argentinean nationality law are mainly to be found in two different legal documents.6 The first is the Law on Citizenship and Naturalization (Ley 346), in force since 1869 apart from the period when Argentina was under dictatorial rule.7 The second is Decree 3213/84 of 19 October 1984 and subtitled Reglamentación de la Ley 346. In addition, two provisions from the Constitution have a bearing on nationality law, to wit Article 20 and Article 75(12). The former states that foreigners ‘may obtain naturalization 1 ‘The viceroyalty brought the age of absolutism to Buenos Aires; it provided a new bureaucracy, more trade and an improved infrastructure. But is also brought a heavier burden of government, greater exploitation, a more peremptory policy’. See J. Lynch, San Martín. Argentine Soldier, American Hero, 32. 2 L. Bethell, ed. The Cambridge History of Latin America, vol. 1 (New York: Cambridge, 1984), 403. 3 See Marcela Ternavasio in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 213. 4 J.D. Rudolph and T.E. Weil, Argentina, a country study, 3rd ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 1985), 17. 5 Moosmayer, 15. Hecker (28) adds that the different Argentinean provinces used to have their own nationality legislation up to 1860. 6 Both can be found together at http://www1.hcdn.gov.ar/dependencias/dip/textos%20 actualizados/346-240805.pdf. 7 Law 21.795 was in force from 18 May 1978 to 5 April 1984, when Argentina was ruled by a military junta. See Ramella.

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papers residing two uninterrupted years in the Nation; but the authorities may shorten this term in favor of those so requesting it, alleging and proving services rendered to the Republic’; Article 75(12) in turn empowers Congress ‘to enact general laws of naturalization and nationality for the whole nation, based on the principle of nationality by birth or by option for the benefit of Argentina’.8 It may thus be concluded that, compared to other Latin American countries, the Argentinean Constitution hardly plays a substantial role in nationality law. Also, Argentinean law is different from other Latin American countries in that no clear distinction is made in the legislation between the terms nacionalidad and ciudadanía. While it was already seen in Chapter 1 that nacionalidad is normally the term used to denote the legal bond between an individual and a State, Argentina prefers to use ciudadanía.9 Like in many Latin American States, acquisition iure soli dominates over acquisition iure sanguinis under Argentinean law, although the latter has increasingly assumed greater importance. The underlying role of ius sanguinis in comparison with ius soli is best illustrated by mode of acquisition A01b, which limits the acquisition of Argentinean nationality to the first generation born abroad. This means that children born abroad to Argentinean parents who themselves were not born in Argentina do not acquire Argentinean nationality, and need to have recourse to the ordinary naturalization procedure.10 But since Mario Oyarzábal refers to case law where an option right for children of non-native parents was nonetheless granted, meaning that also the second generation born abroad would become Argentinean, the matter remains somewhat unclear.11 Children born abroad to Argentinean parents working for the government acquire the parents’ nationality by virtue of another law – Law 17.692 of 1968 (Article 1).12 Acquisition iure soli is straightforward in Argentina because, with the exception of children born to foreign diplomats, any child born in the country automatically acquires Argentinean nationality.13 Naturalization seems to be an entitlement if all the conditions have been met, although explicit confirmation of this was not found in doctrinal writings. 8 http://www.senado.gov.ar/web/interes/constitucion/english.php. 9 It might be speculated that this is due to the strong Italian influence in Argentina and the use of cittadinanza instead of nazionalità in Italy. See Chapter 1, Section 2. 10 This is the position taken by Oyarzábal (20): ‘Cabe preguntarse si los hijos de un argentino por opción nacidos en el extranjero pueden a su vez optar por la nacionalidad argentina. A nuestro entender no es así…’. 11 Oyarzábal, 20. 12 Law of 29 March 1968. See Ibid., 65. 13 Ibid., 18.

Argentina

85

It was mentioned in Chapter 3 that neither this study nor the eudo methodology that it is inspired by refers to provisions from Civil Codes – even though reference might be considered opportune with regard to certain ‘modes’, for example A04. Thus, it could have been added as regards A04 for Argentina that ‘in case of [a] child’s birth out of wedlock paternity will be defined by either recognition or legal establishment of paternity (art. 247 acc [Argentinean Civil Code])’.14 However, reference to the acc did not seem essential for our purposes; what is important is that the Nationality Act does not explicitly lay down the consequences of recognition or establishment of paternity for the acquisition of Argentinean nationality – hence the table reads ‘no provision’ for A04. Although Argentinean nationality law does not mention adoption as a ground for acquisition, some legal authors are of the opinion that adopted children find themselves in the same position as children born abroad to Argentinean parents (A01b).15 Dual nationality is accepted in Argentina as renunciation of the original nationality is not required upon naturalization, while Argentinean nationality can under no circumstances be lost. In fact, Argentinean nationality law has been silent on the matter of loss of nationality since 1869. While its predecessor, Law 145 of 1857, imposed loss after naturalization abroad, it has been commonly accepted since 1869 that Argentinean nationals by birth can never lose their nationality – neither by nullification, withdrawal or renunciation.16 arg 8 does, however, contain a provision concerning the loss of citizenship rights.17 The position of those who acquired nationality by declaration or naturalization is different in that, despite the law being silent on the issue, their Argentinean nationality can apparently be revoked, e.g. on the grounds of fraud or evasion of immigration law.18 But similar to native Argentineans, non-native citizens can also not renounce their nationality – something which is clearly not in line with international standards, in particular udhr 15 and AmCHR 20(3).19 A dual nationality treaty was concluded first with Spain and later with Italy. The treaties and their additional protocols entered into force on 2 February 1970 14 15 16 17 18 19

Von Reden, 19. See Von Reden (18–19) for an overview of Argentinean doctrine on this issue. Moosmayer, 24. Political rights can, for example, not be exercised by those who have accepted employment by a foreign State without prior approval from Congress. Von Reden, 27. The law being silent on the matter, this apparent exception is not listed in the table. See also O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness,” 66.

86

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and 1 October 2002 (with Spain), and on 12 September 1974 and 16 August 2005 (with Italy), respectively.20 Bibliography Belgrano, Mario. La cuestión de la nacionalidad y el tratado con España de 1863. Buenos Aires: Sociedad de Historia Argentina, 1942. [19 p; booklet is about the negotiation process surrounding the 1863 treaty.] Cook-Martín, David. The Scramble for Citizens. Dual Nationality and State Competition for Immigrants. Stanford: Stanford University Press, 2013, in particular 97–128. Díaz Cisneros, César. “La nacionalidad de las personas en los tratados de la república argentina con España.” Anuario Hispano-Luso-Americano de derecho internacional, no. 2 (1963): 187–194. Egea Lahore, Pedro Eduardo. “Derecho de nacionalidad argentino.” Anuario de derecho civil (España) 32 (1979 (octubre-diciembre)): 801–825. Greño Velasco, José Enrique. “Régimen Jurídico de la Nacionalidad en el Convenio Hispano-Argentino de 14 de Abril de 1969.” La Justicia 31, no. 503 (1972): 48–54. ——. “La ‘clausula constitucional’ en el convenio de nacionalidad entre la república argentina y España.” Anuario Hispano-Luso-Americano de derecho internacional, no. 4 (1973): 207–240. Halajczuk, Bohdan T. and María Teresa del R. Moya Domínguez. Derecho internacional público. 3rd ed. Buenos Aires: Ediar Sociedad Anónima Editora, 1999, p. 457–472. [Deals with nationality in Argentina and internationally.] Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 28–39. Lessing, Hans. Los momentos de conexión en el derecho de nacionalidad. Buenos Aires: Impr. de la Universidad, 1942. [Reprinted in Revista Argentina de Derecho Internacional, no. 2 and 3 from 1942; deals with the grounds under which states may legitimately confer their nationality under international law; ‘momentos de conexión’ is translated by Lessing himself in French and German as ‘éléments de rattachement’ and ‘Anknüpfungsmomente’.] Lessing, Juan A. Problemas del derecho de nacionalidad (proposiciones de reforma). Buenos Aires: Tipográfica editora argentina, 1946. [159 p; textbook-like study on problems related to nationality; on a curious note, the annex contains a proposal for the establishment of ‘una oficina internacional para problemas de nacionalidad’.] 20

Vonk, 284, 296, 298.

Argentina

87

Martínez Delfa, Norberto Q., Laura Elena Vilosio and Anahí Priotti. Nacionalidad y ciudadanía. Rosario: Universidad Nacional de Rosario, 1997. [134 p; short textbooklike introduction to (Argentinean) nationality law, with a particular emphasis on the relationship with human rights.] Moosmayer, Peter. Staatsangehörigkeitsrecht von Argentinien, Uruguay und Paraguay. Frankfurt am Main: Alfred Metzner Verlag, 1972. Moya Domínguez, María Teresa del R. Manual de derecho internacional público. Buenos Aires: Ediar, 2004, p. 253–262. [Information is similar to the above-mentioned book by Halajczuk.] Organización Internacional para las Migraciones, ed. Primeras Jornadas sobre el Régimen Jurídico de la Nacionalidad Argentina. Buenos Aires: oim, 2003. [Contains a collection of essays by different authors on Argentinean nationality law.] Oyarzábal, Mario J.A. La nacionalidad argentina: un estudio desde la perspectiva del derecho internacional público, del derecho internacional privado y del derecho interno argentino, con referencias al derecho de la integración. Buenos Aires: La Ley, 2003. [Most comprehensive textbook on Argentinean nationality law; builds on Oyarzábal’s contribution in the above-listed oim publication.] Poviña, Jorge Raúl. “Ciudadanía y nacionalidad en la Constitución Argentina reformada de 1949.” La Ley Tomo 60 (octubre-diciembre) (1950): 876–880. Ramella, Pablo A. Nacionalidad y ciudadanía. Buenos Aires: Depalma, 1978. [117 p; contains a comprehensive analysis of Ley 21.795 from 1978, the text of which is included at the end of the book.] Romero del Prado Victor N. “Conflictos de nacionalidad. Mision diplomática del doctor Mateo J. Luque en 1861.” La Ley Tomo 20 (octubre-diciembre) (1940): 1–12. ——. “La opción por la nacionalidad argentina.” La Ley Tomo 37 (enero-marzo) (1945): 863–868. ——. “El derecho de opción en materia de nacionalidad. Su incorporación en la Constitución nacional de 1949.” La Ley Tomo 60 (octubre-diciembre) (1950): 945–948. ——. “La Constitución nacional de 1949 y los principios fundamentales en materia de nacionalidad.” La Ley Tomo 60 (octubre-diciembre) (1950): 790–793. von Reden, Hans. “A Comparative Analysis on Acquisition and Loss of Nationality in Argentina and Chile.” Bachelor’s thesis. Maastricht University: Faculty of Law, 2010. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012.

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

A01a

A06

A03a A03b A04 A05

A02b

A01b A02a

short description

idmode

modesacq Argentina

Const 20, arg 2(1), 6, Decree (3213/84) 3–8

No provision No provision No provision No provision

No provision

arg 1(2), 5 arg 1(1)

No provision

articles

n.a. n.a. n.a. n.a. Person has been resident in Argentina for a continuous period of at least 2 years and expresses his or her will to acquire citizenship before a federal district judge. Other conditions: source of income or occupation sufficient for support, no convictions for a crime committed in Argentina or abroad that carries a prison sentence of 3 years or more (unless the sentence has been served and the application for naturalization is submitted 5 years after serving the sentence, or when

Naturalization (entitlement)

Person is born abroad to a citizen who was born in Argentina. Person is born in Argentina. Unless parents are foreign diplomats. n.a.

n.a.

conditions

n.a. n.a. n.a. n.a.

n.a.

Declaration Automatic

n.a.

procedure

88 chapter 5

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension

Extension to other relatives

A09 A10 A11 A12

A15

A13 A14

A08

Socialization based acquisition Spousal transfer

A07

No provision

No provision arg 3–4

No provision No provision No provision No provision

arg 2(2)(7)

No provision

n.a.

n.a. Naturalization (entitlement)

Naturalization (entitlement) n.a. n.a. n.a. n.a.

n.a.

n.a. Person is the child of a father who acquired citizenship by naturalization. Other conditions: person is a minor and born abroad. Or the person is the child of a father who was naturalized abroad, and he/she enrolls in the National Garde at the time prescribed by law. n.a.

Person is the male spouse of a female citizen. Other conditions: see A06 (except residence requirement). n.a. n.a. n.a. n.a.

amnesty has been granted), no criminal proceedings initiatives against the person, and oath of loyalty. Judge may deny naturalization if the applicant publicly advocates the overthrow of the democratic system or the use of violence. Political, ideological, trade union-related, religious or racial considerations can have no effect on the acquisition of citizenship. n.a.

Argentina

89

Reacquisition Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

A16 A17

A24

A19 A20 A21 A22 A23

A18

short description

idmode

modesacq Argentina

(Table continued)

arg 2(2) (4)–2(2)(6), 2(2)(8)

No provision No provision No provision No provision No provision

No provision

No provision No provision

articles

n.a. n.a. n.a. n.a. n.a. Person is an entrepreneur or builder in the field of railway construction, part of an established colony (colonia establecida) and own real estate in the country, populates an Argentinean national territory (territoria nacional), or is a teacher in any field of education or industry. Other conditions: see A06 (except residence requirement).

Naturalization (entitlement)

n.a.

n.a. n.a.

conditions

n.a. n.a. n.a. n.a. n.a.

n.a.

n.a. n.a.

procedure

90 chapter 5

Financial assets

Acquisition of citizenship for other reasons

A26

A27

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth)

L01 L02 L03 L04

L06

L05

short description

idmode

modesloss Argentina

Public service

A25

No provision

No provision

No provision No provision No provision No provision

articles

No provision

arg 2(2)(3)

arg 2(2) (1)–2(2)(2)

n.a.

n.a.

n.a. n.a. n.a. n.a.

procedure

n.a.

Naturalization (entitlement)

Naturalization (entitlement)

n.a.

n.a.

n.a. n.a. n.a. n.a.

conditions

Person has honourably fulfilled, in Argentina or abroad, a function in the service of Argentina, or has militarily defended the country. Other conditions: see A06 (except residence requirement). Person has established a new industry or introduced a useful invention. Other conditions: see A06 (except residence requirement). n.a.

Argentina

91

Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

L07 L08 L09 L10

L15

L13b L14

L13a

L12

L11

short description

idmode

modesloss Argentina

(Table continued)

No provision

No provision No provision

No provision

No provision

No provision

No provision No provision No provision No provision

articles

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a. n.a. n.a. n.a.

procedure

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a. n.a. n.a. n.a.

conditions

92 chapter 5

Bahamas

93

Bahamas Although the Bahamas was the first Caribbean island to be discovered by Columbus in 1492,1 Spain’s attention was focused more on the mineral wealth of the other Caribbean colonies.2 The first permanent settlement on the Bahamas was therefore only established by English puritans in 1649, and by 1783 at the latest the Bahamas had become part of the dominions of the British Crown.3 It became an independent country within the Commonwealth on 10 July 1973, thereby ceasing to be part of the UK and Colonies.4 The relevant legislation in the case of the Bahamas is currently found in Chapter 2 of the 1973 Constitution and the 1973 Nationality Act.5 The Bahamas, Belize and Jamaica are the three English-speaking countries in the region that refer to nationality rather than citizenship in their legislation. Not having implemented a rule for A03b and a general ius soli rule being absent, the Bahamas acts in violation of international norms on statelessness, in particular crs 1 and AmCHR 20(2). It is noted that Article 7 of the Constitution (A05) does not, in contrast to Articles 5 and Article 9 (modes A18 and A01b, respectively), state that renunciation is not required if it is legally impossible. This is a case of inconsistency sometimes also found in the legislation of other countries in the region.6 A10 is the same gender-discriminatory rule as found in A&B and thus I refer to the analysis there. Many countries do not specify in their nationality legislation what full capacity means exactly. The legislation of the Bahamas is an exception, referring to full capacity as ‘not being of unsound mind’ (bah 3(1)). Such a requirement, however, is problematic in light of the 2006 Convention on the Rights of Persons with Disabilities.7 Article 18 of that Convention reads: 1 L. Bergreen, Columbus. The Four Voyages 1492–1504 (New York: Penguin, 2011), 13. 2 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, 521. 3 The term ‘Crown dominion’ refers ‘to all the territories over which the British Crown had sovereignty or “dominion”’. For the purposes of British nationality law, however, it is irrelevant to know the administrative regime in place (e.g. whether the territory was a ‘Crown colony’, a ‘colony with representative government’ etc.). See Fransman, 66. 4 Ibid., 837–843. 5 Both the Constitution and the Bahamas Nationality Act (Bahamas Statute No 18 of 1973) entered into force on 10 July 1973 and are available at http://www.bahamas.gov.bs/wps/wcm/ connect/d40cb8f8-2e95-4f05-a8de -105e88bdb7ac/Chap+2+Citizenship.pdf ? MOD=AJPERES and http://laws.bahamas.gov.bs/cms/images/LEGISLATION/PRINCIPAL/ 1973/1973-0018/BahamasNationalityAct_1.pdf. 6 See e.g. the chapter on Dominica. 7 In Italy there have been cases in which the Ministry of Interior denied citizenship to applicants who were affected by Down Syndrome, and were consequently deemed ‘incapable of

94

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1. States Parties shall recognize the rights of persons with disabilities to…a nationality, on an equal basis with others, including by ensuring that persons with disabilities: a) Have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability; […] It is unclear why there is a separate provision for Commonwealth citizens and British protected persons (bah 5), since they have to comply with exactly the same requirements as ordinary naturalisees (bah 9). A case of internal inconsistency can also be witnessed as regards L01. While the Constitution speaks of twenty-one years as the age at which one can renounce nationality, the Nationality Act mentions ‘full age’ – meaning eighteen years of age (bah 10 in conjunction with 3(1)). The discrimination of citizens by naturalization and by registration is apparent. In the Bahamas the only grounds for loss that cannot result in statelessness are L01 and (partly) L08. In the context of renunciation, it is appropriate to stress the similarities and differences between Article 7(1) of the 1961 Convention and the provision from which it took its inspiration – that is, Article 7(1) of the 1930 Hague Convention. The latter provided as follows: In so far as the law of a State provides for the issue of an expatriation permit [i.e. a variation on loss of nationality by renunciation], such a permit shall not entail the loss of the nationality of the State which issues it, unless the person to whom it is issued possesses another nationality or unless and until he acquires another nationality. Article 7(1) of the 1961 Convention basically corresponds to this rule, but unfortunately it does not indicate what happens if the promised nationality is not acquired. Article 7(2) of the Hague Convention, by contrast, added the following: An expatriation permit shall lapse if the holder does not acquire a new nationality within the period fixed by the State which has issued the permit.

discernment and unable to take the pledge’ as demanded under the law. See http://eudo -citizenship.eu/news/citizenship-news/792-second-generation-immigrants-denied-italian -citizenship-when-affected-by-down-syndrom.

Bahamas

95

By invalidating the renunciation after six months if the individual has not acquired another citizenship within that time period, the Bahamas thus goes beyond what is required under the principal international instrument on the reduction of statelessness – namely the 1961 Convention.8 Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 40–41. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 837–843. 8 The six-month term was also found under British law at the time the Bahamas became independent. See Article 2(1) of the bna 1964, reproduced in Fransman 1563.

Descent (born in the country) Descent (born abroad)

A01a

A03a A03b

A02b

A02a

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless

short description

idmode

A01b

Bahamas

modesacq

Automatic

procedure

No provision No provision

No provision

No provision

n.a. n.a.

n.a.

n.a.

Const 8; Automatic; Const 9, bah 7 Registration (entitlement)

Const 6

articles

n.a. n.a.

n.a.

Person is born abroad to a father who himself is a citizen otherwise than by mode A01b; Person is born abroad and out of wedlock to a mother who is a citizen, and registers between the age of 18 and 21. Other conditions: renunciation of another citizenship (unless this is legally impossible), and oath of allegiance. Registration can be denied in the interests of national security or public policy, or if the person within a period of 5 years immediately preceding the application was sentenced to death or a prison sentence of at least 12 months, is not of good behaviour, is a danger to public safety, has been declared bankrupt, or has insufficient means to support him/herself. n.a.

Person is born in the Bahamas to a citizen.

conditions

96 chapter 5

Socialization based acquisition

A07 No provision

bah 9, Schedule 2–3

Ordinary naturalization

A06

Person’s father marries the mother. Person is born in the Bahamas to foreign citizens and submits an application within 1 year after reaching the age of majority. Other conditions: renunciation of another citizenship and oath of allegiance. Registration can be denied in the interests of national security or public policy, if the person within a period of 5 years immediately preceding the application was sentenced to death or to a prison sentence of at least 12 months, is not of good behaviour, is a danger to public safety, has been declared bankrupt, or has insufficient means for self-support. Naturalization Person has been resident in the Bahamas for 12 months (discretionary) immediately prior to the application, and was either resident in the country, in the service of the government, or had partly such residence and partly such service for 6 out of 9 years prior to the 12-month period. Other conditions: renunciation of another citizenship, good character, full capacity, sufficient knowledge of English and of the duties of a citizen, intent to make the Bahamas his/her permanent home (either by residence or government service), and oath of allegiance. Minister is explicitly allowed to waive certain requirements. n.a. n.a.

Establishment of paternity bah 3(3) Automatic Birth in country (acquisi- Const 7, bah 7 Registration tion after birth) (entitlement)

A04 A05

Bahamas

97

short description

Spousal transfer

Filial transfer Adoption

Transfer to other relatives Transfer from former citizen Spousal extension

idmode

A08

A09 A10

A11 A12

A13

Bahamas

modesacq

(Table continued)

Const 10, bah 7

No provision No provision

No provision bah 4

Const 10, bah 7

articles

Registration (entitlement)

n.a. n.a.

n.a. Automatic

Registration (entitlement)

procedure

Person is the female spouse of someone who becomes a citizen. Other conditions: oath of loyalty. Registration can be denied in the interests of national security or public policy, or if the person within a period of 5 years

Person is the female spouse of a male citizen. Other conditions: oath of allegiance. Registration can be denied in the interests of national security or public policy, or if the person within a period of 5 years immediately preceding the application was sentenced to death or a prison sentence of at least 12 months, is not of good behaviour, is a danger to public safety, has been declared bankrupt, or has insufficient means for self-support. n.a. Person is a minor who is adopted by a citizen or, in case of joint adoption, by a male citizen. n.a. n.a.

conditions

98 chapter 5

A24 A25

A19 A20 A21 A22 A23

A18

A16 A17

A14 A15

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements Public service

Filial extension Extension to other relatives Reacquisition Restricted citizenship rights Citizenship of a specific country

No provision No provision

No provision No provision No provision No provision No provision

bah 5

No provision No provision

No provision No provision n.a. n.a.

n.a. n.a.

n.a. n.a.

Registration Person is a Commonwealth citizen or a British protected (discretionary) person. Other conditions: full capacity, renunciation of another citizenship (unless this is legally impossible), and oath of allegiance (only for British protected persons). Other conditions: see A06. n.a. n.a. n.a. n.a. n.a. n.a. n.a. n.a. n.a. n.a.

n.a. n.a.

n.a. n.a.

immediately preceding the application was sentenced to death or to a prison sentence of at least 12 months, is not of good behaviour, is a danger to public safety, has been declared bankrupt, or has insufficient means for self-support. n.a. n.a.

Bahamas

99

Bahamas

short description

Financial assets Acquisition of citizenship for other reasons

Bahamas

short description

Renunciation of citizenship

Residence abroad Service in foreign army Other service for foreign country

modesacq

idmode

A26 A27

modesloss

idmode

L01

L02 L03 L04

(Table continued)

Declaration

procedure

n.a. n.a.

procedure

No provision n.a. No provision n.a. bah 11(2)a(iv) Withdrawal

Const 12, bah 10

articles

No provision No provision

articles

Person is 21 years or older and is or will become a citizen of another country. Renunciation only takes effect after registration by the authorities. If citizenship of another country is not acquired within 6 months from the date of registration, the renunciation will become invalid. n.a. n.a. Person acquired citizenship by registration or naturalization and has in any way assisted the enemy in a war in which the Bahamas was engaged. Loss can result in statelessness.

conditions

n.a. n.a.

conditions

100 chapter 5

Disloyalty or treason

Other offences

Fraudulent acquisition

L07

L08

L09

bah 11(1)

bah 11(2) a(i–ii), 12(3)

Const 11(2); bah 11(2) a(i, iii, v)

Non-renunciation foreign No provision citizenship (acquisition by birth)

L06

Const 11(1)

Acquisition of foreign citizenship

L05

Person voluntarily claimed and exercised rights in another country which are accorded exclusively to that country’s citizens. Loss can result in statelessness; Person acquired citizenship by registration or naturalization and has been convicted of treason, engaged in activities prejudicial to the safety of the Bahamas, or has been disloyal (in act or speech) towards the Bahamas. Loss can result in statelessness. Person acquired citizenship by registration or naturalization and has been convicted in any country for a criminal offence that carries the dealth penalty or imprisonment for at least 7 years (loss can result in statelessness), or has within 5 years of acquisition been sentenced in any country to imprisonment for at least 12 months (loss cannot result in statelessness). Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness.

Withdrawal; Withdrawal

Withdrawal

Withdrawal

n.a.

Person acquired citizenship of another country other than by marriage, and has exercised rights which are accorded exclusively to that country’s citizens. n.a.

Withdrawal

Bahamas

101

short description

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

idmode

L10

L15

L13b L14

L13a

L12

L11

Bahamas

modesloss

(Table continued)

No provision

No provision No provision

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

No provision

No provision

procedure

articles

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

conditions

102 chapter 5

Barbados

103

Barbados While the first European landings on Barbados took place during the 1620s, it was only during the 1660s that Barbados became part of the Crown’s dominions for the purposes of nationality law. Barbados has been called ‘Little England’ for being the Caribbean island that most retained its British character throughout the centuries.1 After a long period of uninterrupted British rule starting in the 1620s, the country became independent on 30 November 1966 and was one of the ten colonies comprising the short-lived Federation of the West Indies (1958–1962) mentioned in Chapter 2.2 Chapter 2 of the 1966 Constitution and the 1966 Citizenship Act are relevant for Barbadian nationality.3 bar 5 mentions that any minor can be registered as a citizen at the Minister’s discretion. Such a provision is fairly common in the English-speaking Caribbean (see e.g. also bah 6 and guy 5(2)), but this provision was considered too vague to merit special mention under A07. Another similarity with the Bahamas (as well as A&B) is mode A10 in Barbados, which is a case of gender discrimination identical to what was seen in those two other countries.4 bar 4(3) does not state, in contrast to the corresponding provision under Bahamian law, that the ordinary naturalization provisions also apply to persons covered by mode A18. It is also noted that the procedure under these two modes differs. L01 is remarkable in the sense that the constitutional protection mechanism which declares renunciations invalid if another citizenship is not acquired within six months is not repeated in the Nationality Act. Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 42–43. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 847–852. 1 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, 387. For the role of Barbadian planters in establishing the United States’ ‘Deep South’, see C. Woodard, American Nations. A History of the Eleven Rival Regional Cultures of North America (New York: Penguin, 2011), chapter 7. 2 Fransman, 847–852. 3 The Constitution and the Barbados Citizenship Act (Cap 186) both entered into force on 30 November 1966 and are available at http://www.oas.org/dil/The_Constitution_of _Barbados.pdf and http://www.refworld.org/docid/3ae6b56b8.html. 4 See in particular the chapter on A&B for more details.

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings

Born stateless

Establishment of paternity Birth in country (acquisition after birth)

A02b

A03b

A04

A05

A03a

Birth in country (2nd generation)

A02a

A01b

Barbados

modesacq

No provision

bar 2(5)

bar 4(1)

bar 4(1)

No provision

Const 4

Const 4A; Const 5

No provision

articles

n.a.

Automatic

Automatic

Automatic

n.a.

Automatic

Automatic; Automatic

n.a.

procedure

n.a.

Person is a newborn infant found in Barbados of unknown parentage. Person is born to a mother who is a citizen and the child would otherwise be stateless. Person’s father marries the mother.

Person is born abroad to a citizen in the diplomatic service of Barbados; Person is born abroad to a citizen who was born in Barbados, or to a father who is a citizen otherwise than by descent. Person is born in Barbados. Unless the child is born to a father who is a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

n.a.

conditions

104 chapter 5

Socialization based acquisition Spousal transfer

Filial transfer Adoption

Transfer to other relatives Transfer from former citizen

Spousal extension

A07

A09 A10

A11 A12

A13

A08

Ordinary naturalization

A06

Const 6

No provision No provision

No provision bar 5(3)

Const 6

No provision

bar 7, Schedule 2–3

Registration (entitlement)

n.a. n.a.

n.a. Automatic

Registration (entitlement)

n.a.

Naturalization (discretionary)

Person is the female spouse of someone who becomes a citizen. Other conditions: oath of loyalty (only for British protected persons and persons who are not Commonwealth citizens or citizens of Ireland). Registration can be denied in the interests of national security or public policy.

Person is the female spouse of a male citizen. Other conditions: oath of loyalty (only for British protected persons and persons who are not Commonwealth citizens or citizens of Ireland). Registration can be denied in the interests of national security or public policy. n.a. Person is a minor who is adopted by a citzen or, in case of joint adoption, by a male citizen. n.a. n.a.

Person has been resident in Barbados for 12 months immediately prior to the application (exemption for British protected persons), as well as during 5 out of 7 years predating the 12-month period. Other conditions: good character, full capacity, intent to reside in Barbados, and oath of allegiance. Minister is explicitly allowed to waive certain requirements. n.a.

Barbados

105

short description

Filial extension Extension to other relatives Reacquisition Restricted citizenship rights Citizenship of a specific country

Cultural affinity Presumed citizens

idmode

A14 A15

A19 A20

A18

A16 A17

Barbados

modesacq

(Table continued)

No provision No provision

bar 4(3), 4(9)

No provision No provision

No provision No provision

articles

n.a. n.a.

Registration (discretionary)

n.a. n.a.

n.a. n.a.

procedure

Person is Commonwealth citizen or a citizen of Ireland and has been ordinarily resident in Barbados, or has been in the service of the government, or has had partly such residence and partly such service for at least 5 out of 7 years immediately prior to the application. Minister is explicitly allowed to waive certain requirements. Registration can be denied in the interests of national security or public policy, if the person has been sentenced to death or to a prison sentence of at least 12 months, is not of good character, is a danger to public safety, has been declared bankrupt, or has insufficient means to support him/herself. n.a. n.a.

n.a. n.a.

n.a. n.a.

conditions

106 chapter 5

Special achievements Public service Financial assets Acquisition of citizenship for other reasons

A24 A25 A26 A27

short description

Renunciation of citizenship

idmode

L01

modesloss Barbados

Very long residence Refugees Stateless or unclear citizenship

A21 A22 A23

Const 7, bar 8

articles

No provision No provision No provision No provision

No provision No provision bar 4(5), 4(9)

Declaration

procedure

n.a. n.a. n.a. n.a.

n.a. n.a. Registration (entitlement)

Person is of full capacity and is or becomes a citizen of another country. Renunciation only takes effect after registration by the authorities. If citizenship of another country is not acquired within 6 months from the date of registration, the renunciation will become invalid.

conditions

n.a. n.a. Person is and has always been stateless and was born before 29 November 1966 to a mother who was a citizen iure soli, or was born after that date to a mother who was a citizen, or was born in Barbados. Registration can be denied in the interests of national security or public policy, if the person has been sentenced to death or to a prison sentence of at least 12 months, is not of good character, is a danger to public safety, has been declared bankrupt, or has insufficient means to support him/herself. n.a. n.a. n.a. n.a.

Barbados

107

Other offences

L08

L07

L06

Acquisition of foreign No provision citizenship Non-renunciation foreign No provision citizenship (acquisition by birth) Disloyalty or treason bar 9(2)a(i), 9(2)c, 9(2)e

L05

bar 9(2)a(ii), 9(2)b, 9(3)

No provision No provision bar 9(2)d

Residence abroad Service in foreign army Other service for foreign country

L02 L03 L04

articles

short description

idmode

modesloss Barbados

(Table continued)

Withdrawal

Withdrawal

Person acquired citizenship by registration or naturalization and has been convicted of treason, engaged in activities prejudicial to the safety of Barbados, or has been disloyal (in act or speech) towards Barbados. Loss can result in statelessness. Person acquired citizenship by registration or naturalization and has been convicted in any country for a criminal offence that carries the dealth penalty or imprisonment for at least 7 years (loss can result in statelessness), or has within

n.a.

n.a.

n.a.

n.a. n.a. Person acquired citizenship by registration or naturalization and has in any way assisted the enemy in a war in which Barbados was engaged. Loss can result in statelessness. n.a.

conditions

n.a. n.a. Withdrawal

procedure

108 chapter 5

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

L10

L15

L13b L14

L13a

L12

L11

Fraudulent acquisition

L09

No provision

No provision bar 4(1)

No provision

No provision

n.a.

n.a. Withdrawal

n.a.

n.a.

n.a.

n.a.

No provision

No provision

Withdrawal

bar 9(1)

n.a. Person acquired citizenship as a foundling and her/his citizenship of another country is established. n.a.

n.a.

n.a.

n.a.

5 years of acquisition been sentenced in any country to imprisonment for at least 12 months (loss cannot result in statelessness). Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness. n.a.

Barbados

109

110

chapter 5

Belize The first English settlers arrived in Belize in the early 1600s. In the period prior to 1862, the territory was known as the Settlement of Belize; from 1862–1973 it was called British Honduras.1 The microstate became an independent country within the Commonwealth on 21 September 1981 and has a history quite distinct from the other Central American States.2 In fact, maintaining an English-speaking nation in a region dominated by Hispanic peoples has been a permanent struggle, and Guatemala made territorial claims to Belize as late as the 1990s.3 Part III of the 1981 Constitution and the 1981 Nationality Act are relevant for the purposes of current nationality law.4 Belizean law distinguishes between citizens by descent and by registration, thereby deviating from the traditional distinction made under British law between citizens by birth (ius soli) and by descent (ius sanguinis), on the one hand, and registration, on the other.5 ‘By descent’ under Belizean law therefore includes acquisition iure soli, as becomes clear from bel 4. It is speculated that the approach in Belize can be attributed to the Latin American tradition of bringing both ius sanguinis and ius soli under the heading ‘by birth’ – that is, nacionalidad de origen or por nacimiento. It is also noted that what would ordinarily be considered a naturalization procedure in other countries is referred to as ‘citizenship by registration’ in Belize. The term naturalization is not employed in the law apart from two not so relevant occasions.6 Confusingly, the law suddenly starts using the term ‘by birth’ with respect to mode L05. It is stated in Article 27 of the Constitution that ‘A citizen of Belize by birth or descent who acquires the citizenship of another country may, if the laws of the other country so permit and at his option, retain his citizenship of Belize’. However, the law does not define who is a citizen ‘by birth’. As was already seen, the law only distinguishes between citizens by descent and by registration, with the former category including acquisition iure soli. In any case, citizens iure soli as well as iure sanguinis may retain Belizean citizenship upon naturalization abroad, unless a renunciation requirement is in place in the country of naturalization, of course. 1 L.R. Mortimer, Guyana and Belize, country studies, 2nd ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 1993), 157. 2 Fransman, 853–860. 3 L.R. Mortimer, Guyana and Belize, 157. 4 The Constitution entered into force on 21 September 1981 and the Belizean Nationality Act (No 1 of 1981) on 28 November 1981. See http://www.nationalassembly.gov.bz/index .php/constitution-belize and http://www.refworld.org/docid/3ae6b50ac.html. 5 Articles 4–6 of the bna 1948 and 1–4 of the bna 1981. 6 See bel 4.

111

b elize

The great number of grounds for loss, including L11 and L12, under Belizean law is quite striking when compared to other countries in the Western Hemisphere. Moreover, there is no protection mechanism against statelessness whatsoever, and the Nationality Act does not even mention the word statelessness. Since it is rather unique that Belizean law explicitly provides for L11 and L12, it is worth taking a closer look at these grounds for loss. As regards L11, the 1961 Convention provides that the loss of citizenship by a person as a consequence of the loss or deprivation of citizenship of his/her spouse shall be conditional upon the person possessing or acquiring another citizenship (crs 6). This principle is complemented by the 1979 Convention on the Elimination of All Forms of Discrimination against Women, which states that a country shall grant women equal rights as men to acquire, change or retain their citizenship. A country shall therefore ensure that change of citizenship by the husband during marriage shall not automatically change the citizenship of the wife, render her stateless or force upon her the citizenship of the husband (cedaw 9(1)). It follows from this that the rule of Article 6 of the 1961 Convention in respect of the nationality position of spouses has in fact been completely superseded by Article 9(1) of the 1979 Convention, and that the loss of nationality by a spouse may not have any effect on the nationality of the other spouse. Belizean law thus violates the international norms on this point. In a similar vein as mode L11, the 1961 Convention provides that the loss of citizenship by a child as a consequence of his/her parent losing or being deprived of citizenship shall be conditional upon the child’s possession or acquisition of another citizenship (crs 6). As this protection mechanism is not in place in Belize, the country again acts contrary to international norms. Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 44–45. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 853–860.

short description

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation)

idmode

A01a

Born stateless Establishment of paternity Birth in country (acquisition after birth)

A03b A04

A05

A03a

Birth in country (3rd generation) Foundlings

A02b

A02a

A01b

Belize

modesacq

n.a. n.a. n.a.

No provision

Automatic

n.a.

Automatic

Automatic

n.a.

procedure

No provision No provision

bel 7

No provision

Const 25, bel 5(2) Const 24, bel 5(1), 5(3)

No provision

articles

n.a.

Person is a newborn infant found in Belize of unknown and unascertainable parentage. n.a. n.a.

Person is born in Belize. Unless the child is born to a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

Person is born abroad to a citizen.

n.a.

conditions

112 chapter 5

Socialization based acquisition Spousal transfer

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension

Extension to other relatives

A07

A09 A10 A11

A15

A13 A14

A12

A08

Ordinary naturalization

A06

bel 12(b)

bel 11 bel 13(1)

No provision

No provision No provision No provision

bel 11

No provision

bel 10

n.a. Registration (discretionary) Registration (entitlement)

n.a.

n.a. n.a. n.a.

Registration (discretionary)

n.a.

Registration (entitlement)

n.a. Person is a minor whose parent includes the child in his/her registration application. Person is a ‘dependent’ relative of an ‘economic citizen’ (A26). This includes the economic citizen’s father and mother as well as his/ her father-in-law and mother-in-law in case they are incapacitated

n.a.

Person is the spouse, or the widow or widower, of a citizen by descent or registration, and has been resident in Belize for 1 year immediately prior to the application. Other conditions: sound mind and intent to continue to reside in Belize. n.a. n.a. n.a.

Person has been ordinarily resident in Belize for 5 years immediately before the application, and intends to continue to do so. Other conditions: sound mind, good character, no conviction for serious criminal offences, no threat to safety or public order of Belize, not been declared bankrupt, sufficient means for self-support. n.a.

Belize

113

short description

Reacquisition Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements Public service

idmode

A16 A17

A25

A24

A19 A20 A21 A22 A23

A18

Belize

modesacq

(Table continued)

No provision

No provision

No provision No provision No provision No provision No provision

No provision

No provision No provision

articles

n.a.

n.a.

n.a. n.a. n.a. n.a. n.a.

n.a.

n.a. n.a.

procedure

n.a.

n.a.

n.a. n.a. n.a. n.a. n.a.

n.a.

or unable to work, his/her minor children, and his/her adult children (below the age of 30) who are dependent on him/her for their livelihood. n.a. n.a.

conditions

114 chapter 5

Acquisition of citizen­ ship for other reasons

Belize

short description

Renunciation of citizenship Residence abroad

A27

modesloss

idmode

L01

L02

Financial assets

A26

bel 20; bel 21(1)e

bel 18

articles

No provision

bel 12(a)

Lapse; Withdrawal

Declaration

procedure

n.a.

Registration (discretionary)

Person is of full capacity. Renunciation only takes effect after registration by the authorities. Loss can result in statelessness. Person is a citizen by registration and has lived abroad for at least 5 years uninterrupted. Unless during that period he/she was employed abroad in the service of the government, was the spouse or minor child of such an employee, resides abroad on a holiday or for health reasons, is a student at an educational institution abroad, resides abroad with a spouse who is a citizen by descent, or is abroad by order of the Minister. Provision does not apply to ‘economic citizens’. Loss can result in statelessness; Person has, since becoming a citizen by registration and for a period of not less than 2 years, been resident in the country of which he/she was a citizen prior to registration, and has not maintained a substantial connection with Belize. Provision does not apply to ‘economic citizens’. Loss can result in statelessness.

conditions

Person has, as an ‘economic citizen’, made a substantial contribution to the economy and/or well-being of Belize, or has rendered distinguished services to the country. Other conditions: good character and sound mind. n.a.

Belize

115

short description

Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

Other offences

Fraudulent acquisition

idmode

L03

L08

L09

L07

L06

L05

L04

Belize

modesloss

(Table continued)

bel 21(1)c

bel 21(1)b, 21(1)d

Withdrawal

Withdrawal

Withdrawal

n.a.

No provision

bel 21(1)f–g

Withdrawal

n.a.

n.a.

procedure

Const 27

No provision

No provision

articles

Person acquired citizenship by registration and has sworn allegiance to a foreign country or has conducted him/herself to the detrimental interest of Belize. Loss can result in statelessness. Person acquired citizenship by registration and has been convicted for certain offences under the Criminal Code or has, within 5 years after the date of registration, been sentenced to imprisonment for a term of 12 months or more. Loss can result in statelessness. Person acquired citizenship by registration based on fraud, false representation, the concealment of material circumstances, or by mistake. Loss can result in statelessness.

Person is a citizen otherwise than by birth or descent who acquires citizenship of another country. n.a.

n.a.

n.a.

conditions

116 chapter 5

Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship Loss for other reasons

L12

L15

L13b L14

L13a

L11

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent

L10

No provision

No provision bel 7

No provision

bel 21(3)b

bel 21(3)a

No provision

n.a.

n.a. Lapse

n.a.

Withdrawal

Withdrawal

n.a.

n.a. Person acquired citizenship as a foundling and his/her citizenship of another country is established. n.a.

Parent of a minor (who was included in the parent’s certificate of registration) loses citizenship by virtue of bel 21(1). Loss can result in statelessness. Spouse of a person loses citizenship by virtue of bel 21(1). Loss can result in statelessness. n.a.

n.a.

Belize

117

118

chapter 5

Bolivia Bolivia, the former Upper Peru,1 adopted a declaration of independence on 6 August 1825.2 ‘Five days later’, the Federal Research Division writes, ‘the assembly, hoping to placate [Simón] Bolívar’s reservations about the independence of Upper Peru, resolved to name the new nation after him’.3 The first Bolivian Constitution, which also dealt with nationality, dates from 19 November 1826.4 In 1884, 1903 and 1938 the country lost part of its territory to Chile, Brazil and Paraguay respectively.5 While the numbers may have changed somewhat in the meantime, in 1991 ‘Bolivia ha[d] the proportionately highest Indian population of any country in Latin America [that is, 55 percent], although Guatemala and Peru both ha[d] larger numbers of Indian inhabitants’.6 Nationality law-related rules are at present particularly scattered in the case of Bolivia. Clearly the most important source is the 2009 Constitution (Chapter 1),7 but other relevant documents are Law no. 2026 (Ley del Código del Niño, Niña y Adolescente – abbreviated in the table as nna) of 1999,8 and three Supreme Decrees – that is, no. 24423 (on naturalization) of 1996,9 no. 27698 (on dual nationality and the recovery of Bolivian nationality) of 2004,10 and no. 216 (on the procedure for acquiring Bolivian citizenship when born abroad to a citizen) of 2009.11

1

2 3 4 5 6 7

8 9 10 11

The viceroyalty of Peru was created by Spain in 1542 and comprised not only what are now Peru and Bolivia but extended southward to what is now Chile. See L. Bethell, ed. The Cambridge History of Latin America, 205. Bolivia became part of the viceroyalty of Río de la Plata in 1776 (see the chapter on Argentina). See Marcela Ternavasio in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 215. R.A. Hudson and D.M. Hanratty, Bolivia, a country study, 3rd ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 1991), 17. Meyer-Lindenberg, 15. Hecker, 46. R.A. Hudson and D.M. Hanratty, Bolivia, xxiv. The present Constitution, which entered into force on 7 February 2009, replaced the Constitution from 1967. See http://pdba.georgetown.edu/Constitutions/Bolivia/bolivia09 .html. Entry into force on 27 October 1999. See http://www.lexivox.org/norms/BO-L-2026.xhtml. Entry into force on 29 November 1996. See http://www.migracion.gob.bo/web/upload/ DS24423.pdf. Entry into force on 24 August 2004. See http://www.gacetaoficialdebolivia.gob.bo/ normas/buscarFecha/1966-03-04/2011-10-21/page:1109. Entry into force on 22 July 2009. See http://www.gacetaoficialdebolivia.gob.bo/normas/ buscar/216.

119

Bolivia

No rules can be found in Bolivian law that allow for the withdrawal or nullification of nationality, but it can be renounced by an individual. Since 13 April 2004, naturalization abroad no longer results in the loss of Bolivian nationality (for the prior situation, see Article 39 of the 1967 Constitution).12 An exception traditionally applied to those who relied on the Spanish-Bolivian dual nationality treaty. This treaty and its additional protocol entered into force on 25 January 1962 and 1 February 2002, respectively.13 Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 46–52. Meyer-Lindenberg, Hermann, Philipp Schmidt-Schlegel and Peter Moosmayer. Das Staatsangehörigkeitsrecht von Bolivien und Peru. Frankfurt am Main: Alfred Metzner Verlag, 1963. Tapia Pinto, Iván Sandro. Curso de derecho constitucional boliviano. Vol. 1, Oruru, Bolivia: Latinas Editores, 2011, p. 271–278. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012. 12 13

Tapia Pinto, 276. Vonk, 284, 296.

A07

A06

A03a A03b A04 A05

A02b

A02a

Socialization based acquisition

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

Descent (born in the country) Descent (born abroad)

A01a

A01b

short description

idmode

modesacq Bolivia

Const 142(1), Supreme Decree no. 24423, 78 No provision

No provision No provision No provision No provision

No provision

Const 141, nna 94, Supreme Decree no. 216, 2 Const 141, nna 94

No provision

articles

Person has been legally resident in Bolivia for a continuous period of 3 years, and must reside in the country for at least 5 years after naturalization. n.a.

Naturalization (discretionary) n.a.

n.a. n.a. n.a. n.a.

n.a. n.a. n.a. n.a.

n.a.

Person is born in Bolivia. Unless parents are foreign diplomats. n.a.

Person is born abroad to a citizen and is registered with the Bolivian consulate in the country of birth.

Registration (entitlement) Automatic

n.a.

conditions

n.a.

procedure

120 chapter 5

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition

Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship

A09 A10 A11 A12 A13 A14 A15 A16

A17

A19 A20 A21 A22 A23

A18

Spousal transfer

A08

No provision No provision No provision No provision No provision

No provision

No provision

No provision No provision No provision No provision No provision No provision No provision Annex to Supreme Decree no. 27698, 5–6

Const 142(2)(1)

n.a. n.a. n.a. n.a. n.a.

n.a.

n.a.

n.a. n.a. n.a. n.a. n.a. n.a. n.a. Declaration

Naturalization (discretionary)

n.a. n.a. n.a. n.a. n.a.

n.a.

Person is the spouse of a citizen. Other conditions: see A06 (residence requirement is reduced to 2 years). n.a. n.a. n.a. n.a. n.a. n.a. n.a. Person is a former citizen who previously renounced citizenship. Children born abroad to parents who previously renounced citizenship have an independent right to apply for citizenship. n.a.

Bolivia

121

Special achievements

Public service

Financial assets Acquisition of citizenship for other reasons

A24

A25

A26 A27

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country

L01

L02 L03 L04

short description

idmode

modesloss Bolivia

short description

idmode

modesacq Bolivia

(Table continued)

Supreme Decree no. 27698, 8 No provision No provision No provision

articles

No provision Const 142(2)(1)

Const 142(2)(2)

Const 142(2)(3)

articles

n.a. n.a. n.a.

Declaration

procedure

n.a. Naturalization (discretionary)

Naturalization (discretionary)

Naturalization (discretionary)

procedure

No other conditions. Loss can result in statelessness. n.a. n.a. n.a.

conditions

Person obtains citizenship for their service to the country. Other conditions: see A06 (residence requirement is reduced to 2 years). Person provides military service in Bolivia. Other conditions: see A06 (residence requirement is reduced to 2 years). n.a. Person has children or foster parents who are citizens. Other conditions: see A06 (residence requirement is reduced to 2 years).

conditions

122 chapter 5

L15

L13b L14

L13a

L12

L11

L07 L08 L09 L10

L06

L05

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons No provision

No provision No provision

No provision

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a. n.a. n.a. n.a.

n.a.

No provision

No provision No provision No provision No provision

n.a.

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a. n.a. n.a. n.a.

n.a.

n.a.

Bolivia

123

124

chapter 5

Brazil1 On 22 April 1500, the Portuguese landed in what is now the Brazilian state of Bahia.2 While Portugal claimed exclusive rights to Brazil, this was soon challenged by other European powers. The French and Dutch in particular made incursions upon Portuguese territory.3 Brazil became independent from Portugal on 7 September 1822,4 after which it became an empire (1822–1889) and then a republic (1889-present). The grounds for acquisition and loss of Brazilian nationality were first laid down in the Constitution of 25 March 1824. In a commentary from 1957, it is remarked that the nationality-related provisions from the different constitutions had remained very similar up to that moment, and the author therefore stressed the strong continuity of Brazilian nationality law.5 Since then, however, Brazil has implemented several important changes, including the extension of ius sanguinis acquisition and the acceptance of dual nationality. The Portuguese equivalents for the Spanish terms nacionalidad and ciudadanía are nacionalidade and cidadania, with the latter concept primarily denoting the exercise of political rights.6 While it is usually sufficient for the countries of the Western Hemisphere to consult the Constitution and the Nationality Act, the case of Brazil is slightly different.7 For Brazil it is necessary to not only read Title III of the Constitution and the 1949 Nationality Act but 1 This chapter has greatly benefitted from a commentary written by Maarten Vink for a Dutch database called ‘Kennisbank Burgerzaken’. However, since the commentary is in Dutch and is only accessible upon payment of a subscription fee, it is not listed below in the bibliography. 2 E. Stols, Brazilië. Een geschiedenis in dribbelpas, 3rd ed. (Leuven/Den Haag: Acco, 2012), 85. The historical outline is generally based on R.A. Hudson, Brazil, a country study, 5th ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 1998), chapter 1. 3 See for example C.R. Boxer, The Dutch in Brazil, 1624–1654 (Hamden, Conn.: Archon Books, 1973). 4 See Isabel Lustosa in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 403. 5 Schmidt-Schlegel, 11. 6 It was already seen in Chapter 1 that the Portuguese tradition, in accordance with the French and Spanish traditions, distinguishes between atribuição (or aquisação originária) and aquisação derivada. 7 The Brazilian Constitution entered into force on 5 October 1988 and was last amended by constitutional reform nr. 54 of 2007. See http://www.planalto.gov.br/ccivil_03/constituicao/ constituicao.htm. The Brazilian Nationality Act, lei nr. 818 of 1949, was last amended by law nr. 6014 of 27 December 1971 and is available at http://www.planalto.gov.br/ccivil_03/leis/ L0818.htm.

BRAZIL

125

also the ‘Foreigners Statute’ (Estatuto dos Estrangeiros), which deals with naturalization in Title XI and is abbreviated in the table as ede.8 As regards the transmission of nationality to children born abroad to Brazilian nationals, it is important to mention the constitutional reform of 2007, which had retroactive effect to 7 June 1994.9 This reform introduced the possibility for Brazilian parents to acquire Brazilian citizenship for their child by registering him or her with the Brazilian consulate abroad. Children born abroad to a Brazilian national only acquire Brazilian nationality automatically if the parent is in the service of the country. Finally, the table shows that Brazilian nationality can also be acquired under mode A01b by establishing residence in Brazil and making an option declaration before reaching the age of 23 years. The 2007 reform testifies to the general trend in Latin America of ius sanguinis acquisition complementing the long-standing ius soli tradition.10 With regard to acquisition iure soli, however, it is worth noting that a child born to a foreign diplomat and another parent who holds Brazilian nationality will not automatically become a national, but that child can acquire Brazilian nationality by declaration. It is remarkable in the case of Brazil that there is a distinction between four different kinds of naturalization – that is, ordinary naturalization (naturalizaçao comum), extraordinary naturalization (naturalizaçao extraordinária), special naturalization (naturalizaçao especial), and provisional naturalization (naturalizaçao provisória). Since the tables already provide the requirements for naturalization under these different procedures, it may suffice to point out that granting naturalization is always at the discretion of the Minister of Justice (bra 7), and it is not automatically extended to the spouse and/or children (bra 20). Renunciation of the nationality of origin, moreover, has not been a requirement since Brazil’s acceptance of dual nationality in 1994.11

8 9

10 11

http://www.planalto.gov.br/ccivil_03/leis/l6815.htm. This statute was last amended on 9 December 1981 by means of law nr. 6964. See the transitory provision in Article 95: ‘Os nascidos no estrangeiro entre 7 de junho de 1994 e a data da promulgação desta Emenda Constitucional, filhos de pai brasileiro ou mãe brasileira, poderão ser registrados em repartição diplomática ou consular brasileira competente ou em ofício de registro, se vierem a residir na República Federativa do Brasil’. See e.g. also Argentina and Chile. See generally P. Levitt, “Variations in Transnational Belonging: Lessons from Brazil and the Dominican Republic,” 264–289.

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It can be concluded from the Constitution that foreign children automatically acquire Brazilian nationality in the case of a full adoption by a Brazilian national (Article 12 read in conjunction with 227(6)).12 In respect of loss of Brazilian nationality, it is particularly important to make some observations concerning L05. Brazil’s acceptance of dual nationality in 1994 not only had the effect that foreigners no longer had to renounce their original nationality upon naturalization in Brazil, but also that Brazilian nationality is no longer automatically lost by Brazilians who naturalize abroad. Brazilian nationality is only lost, in short, if it is voluntarily renounced by the individual (L01) or withdrawn by the authorities (L04, L07 and L09). This should be kept in mind when reading bra 12(4)(2), as amended in 1994, because the wording is not in line with Brazilian practice. According to the Article, nationality is lost by a Brazilian who acquires another nationality, save in the cases: a) of recognition of the original nationality by the foreign law; b) of imposition of naturalization, under the foreign rules, to the Brazilian resident in a foreign State, as a condition for permanence in its territory, or for the exercise of civil rights. This provision seems to imply that Brazilian nationality is lost in situations not covered by either a) or b) of bra 12(4)(2), but we have seen that this is not the case. While the law technically still allows the loss of nationality pursuant to mode L05 under certain circumstances, Brazil does not seem to actively check the acquisition of foreign citizenship by its nationals. bra 12(4)(2) should therefore be read that Brazilians do not automatically lose their citizenship upon naturalization in another country. Bibliography Alves da Frota, Hidemberg. “Reaquisação da nacionalidade brasileira. Ato discricionário ou vinculado?”. Revista Jurídica Consulex 8, no. 185 (2004): 63–64. Dal Ri Júnior, Arno and Odete Maria de Oliveira. Cidadania e nacionalidade: efeitos e perspectivas nacionais, regionais, globais. Coleção Ciências sociais. Ijuí, Rio Grande do Sul, Brasil: Editora unijui, 2002, p. 211–245. 12

According to Article 227(6) of the Constitution, ‘Os filhos, havidos ou não da relação do casamento, ou por adoção, terão os mesmos direitos e qualificações, proibidas quaisquer designações discriminatórias relativas à filiação’.

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Dolinger, Jacob. Direito internacional privado: parte geral. 7th ed. Rio de Janeiro: Renovar, 2003, p. 153–206. Dolinger, Jacob and Alcino Pinto Falcão, eds. A Nova Constituição e o direito internacional. Rio de Janeiro: Livraria F. Bastos, 1987, p. 43–96. Fontes, André R.C. “Nacionalidade brasileira e adoção internacional.” Revista Escola da Magistratura Regional 15, no. 1 (2011): 9–16. Fraga, Mirtô. “A dupla nacionalidade no Direito Brasileiro, de acordo com a Emenda Constitucional de Revisão no. 3, de 1994.” Justitia, São Paulo 57, no. 171 (1995): 53–59. Guimarães, Francisco Xavier da Silva. Nacionalidade: aquisição, perda e reaquisição. 2nd ed. Rio de Janeiro: Editora Forense, 2002. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 53–72. Ferrante, Miguel Jeronymo. Nacionalidade: brasileiros natos e naturalizados. 2nd ed. São Paulo: Editora Saraiva, 1984. Marinho, Ilmar Penna. Tratado sobre a nacionalidade. Rio de Janeiro: Departamento de Imprensa Nacional, 1956. Mendes, Gilmar. “O direito de nacionalidade e o exercício de direitos reconhecidos aos brasileiros natos.” Revista Jurídica Consulex 11, no. 240 (2007): 18–19. Miranda, Francisco Cavalcanti Pontes de. Nacionalidade de origem e naturalização no direito brasileiro. Biblioteca jurídica brasileira. 2nd augmented ed. Rio de Janeiro: A. Coelho Branco F, 1936. Rodas, João Grandino. A nacionalidade da pessoa física. São Paulo: Editora Revista dos Tribunais, 1990. Schmidt-Schlegel, Philipp. Das Staatsangehörigkeitsrecht von Brasilien und Chile. Frankfurt am Main: Alfred Metzner Verlag, 1957. Souza Salomão Egilson. “Direito de nacionalidade. Dos nascidos de brasileiros no exterior a partir da constitução de 1988 até a ec no. 54/07.” Revista Jurídica Consulex 12, no. 282 (2008): 61–63. Tuffi Saliba Aziz. “Nacionalidade brasileira e Direito Internacional. Um breve comentário sobre a Emenda Constitucional no. 54/2007.” Revista de Informaçao Legislativa 45, no. 180 (2008): 77–82.

Descent (born in the country) Descent (born abroad)

A01a

Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth)

A02b

A05

A03a A03b A04

Birth in country (2nd generation)

A02a

A01b

short description articles

idmode

n.a. n.a. n.a. n.a.

No provision

n.a.

n.a.

n.a. n.a. n.a.

Person is born abroad to a citizen in the service of Brazil; Person is born abroad to a citizen not in the service of Brazil and is registered with the Brazilian consulate; Person is born abroad to a citizen not in the service of Brazil and establishes residence in Brazil (by declaration within 4 years of reaching the age of majority). Person is born in Brazil. Unless parents are foreign diplomats; Person is born in Brazil to a parent who is in the service of a foreign country and another parent who is a citizen. n.a.

Automatic; Registration; Declaration

Automatic; Declaration

n.a.

conditions

n.a.

procedure

No provision No provision No provision

Const 12(1)(a), bra 1(1); Const 12(1)(a), bra 2 No provision

Const 12(1)(b), bra 1(2); Const 12(1)(c); Const 12(1)(c), bra 1(2), 4

No provision

Brazil

modesacq

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Ordinary naturalization

Socialization based acquisition

Spousal transfer

A06

A07

A08

Const 12(2)a, ede 112–113

ede 115

Const 12(2)a, bra 7, ede 112–113; Const 12(2)b

Ordinary naturalization (discretionary)

Provisional naturalization (discretionary)

Ordinary naturalization (discretionary); Extraordinary naturalization (discretionary)

Person has been permanently resident in Brazil for at least 4 years immediately prior to the application and continues to do so. Other conditions: legal capacity, knowledge of the Portuguese language (applicant’s conditions are taken into account), source of income or occupation sufficient for self-support and his/her family, good behaviour, no convictions in Brazil or abroad for committing a crime that carries a prison sentence of 1 year or more, and good health; Person has been resident in Brazil for at least 15 years immediately prior to the application and continues to do so. Other conditions: no criminal record. Person came to Brazil before the age of 5 and has continued to live there since. The application for naturalization as requested during minority should be assessed within 2 years after reaching the age of majority. Alternatively, the person has been resident in Brazil before the age of majority and received an education at a Brazilian instutution. Application must be submitted within 1 year of graduating. Other conditions: no criminal record. Person is the spouse of a citizen, has been continuously resident in Brazil for at least 1 year immediately prior to the application and continues to do so. Other conditions: see A06.

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Filial transfer

Adoption

Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition

A09

A10

A11

A16

A13 A14 A15

A12

short description articles

idmode

bra 36

bra 20 bra 20 No provision

No provision

Const 12, 227(6) No provision

Const 12(2)a, ede 112–113

Brazil

modesacq

(Table continued)

Ordinary naturalization (discretionary)

n.a. n.a. n.a.

n.a.

Ordinary naturalization (discretionary) Naturalization (discretionary) n.a.

procedure

Person lost citizenship by acquiring citizenship of another country, or by accepting remuneration or office from a foreign power without prior authorization from Brazil. The other citizenship, remuneration and/or office have to be given up to be eligible for reacquisition.

n.a. n.a. n.a.

n.a.

n.a.

Person is the child of a citizen, has been continuously resident in Brazil for at least 1 year immediately prior to the application and continues to do so. Other conditions: see A06. Person is adopted by a citizen.

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A24

A22 A23

A19 A20 A21

A18

A17

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

Restricted citizenship rights Citizenship of a specific country

Const 12(2)a, ede 112–113

No provision No provision

No provision No provision No provision

Const 12(2)(a), ede 112–113

No provision

Ordinary naturalization (discretionary)

n.a. n.a.

n.a. n.a. n.a.

Ordinary naturalization (discretionary)

n.a.

Person has special professional, scientific or artistic merits, has been resident in Brazil for a continuous period of at least 2 years immediately prior to the application and continues to do so. If person has rendered relevant services to Brazil, the residence requirement is only 1 year. Other conditions: see A06.

n.a. n.a.

Person is a citizen of a Portuguese-speaking country, has been resident in Brazil for a continuous period of at least 1 year immediately prior to the application and continues to do so. Other conditions: good morals. n.a. n.a. n.a.

n.a.

Brazil

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short description articles

Public service

Financial assets

Acquisition of citizenship for other reasons

Brazil

short description articles

Renunciation of citizenship

idmode

A25

A26

A27

modesloss

idmode

L01

Const 12(4)(2)

n.a.

No provision

Declaration

procedure

Ordinary naturalization (discretionary)

Special naturalization (discretionary)

procedure

Const 12(2)a, ede 112–113

ede 114

Brazil

modesacq

(Table continued)

Person is or will become a citizen of another country.

conditions

Person has been the spouse of a citizen in active service of Brazil for at least 5 years, or is a foreigner who has been continuously in the service of Brazil for at least 10 years. Person is exempt from the residence requirement and it suffices to have been in Brazil for 30 days. Person owns real estate in Brazil, has been permanently resident in the country for at least 3 years immediately prior to the application and continues to do so. Other conditions: see A06. n.a.

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L10

L08 L09

L07

L06

L05

L04

L02 L03

Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) n.a. Nullification n.a.

No provision

Withdrawal

n.a.

Withdrawal

Withdrawal

n.a. n.a.

No provision bra 35

bra 22(3)

No provision

Acquisition of Const 12(4)(2), foreign citizenship bra 22(1)

Residence abroad No provision Service in foreign No provision army Other service for bra 22(2) foreign country

Person acquired citizenship by naturalization and acts against the interests of Brazil. Loss can result in statelessness. n.a. Person acquired citizenship by naturalization based on fraud. Loss can result in statelessness. n.a.

Person accepted remuneration or office from a foreign power without prior authorization from Brazil. Loss can result in statelessness. Person acquires citizenship of another country. Unless the other citizenship is automatically acquired under the other country’s laws, or if naturalization is a necessary condition for permanent residence or the exercise of civil rights in the other country. n.a.

n.a. n.a.

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133

Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

L11

L15

L13b L14

L13a

L12

short description articles

idmode

No provision

n.a.

n.a. n.a.

n.a.

No provision

No provision No provision

n.a.

n.a.

procedure

No provision

No provision

Brazil

modesloss

(Table continued)

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

conditions

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Canada

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Canada Canada had been a collection of British colonies until Confederation in 1867, when the autonomous Dominion of Canada was created by way of the British North America Act (currently officially called the Constitution Act). While Canada gained the right to make most of the laws in the dominion under the 1867 Act, it remained part of the British empire and Canadians were still British subjects.1 Canada remained under imperial control until the enactment in 1931 of the Statute of Westminster, by which ‘the British Parliament renounced forever its right to legislate for the empire. The self-governing dominions were henceforth completely self-sufficient, legally and constitutionally’.2 Canada has thus been a de facto sovereign state since 1931, but it only enacted its own Canadian Citizenship Act in 1946. This Act was replaced by a new Canadian Citizenship Act in 1976, which entered into force on 15 February 1977.3 Canada also had to ask permission from parliament in London for certain types of amendments to the Canadian Constitution until the Canada Act 1982 effectively ended all British involvement with the Canadian Constitution. Before British rule over Canada, different parts of the country had been controlled by the French. The latter gave up all their claims to mainland North America with the Treaty of Paris (1763), which ended the Seven Years’ War – better known in America as the French and Indian War. The French Louisiana Territory was sold to Spain in 1763 but was bought back by France in 1800. It was acquired by the United States in 1803 under President Jefferson.4 The memory of French rule still lives on in the French-speaking province of Quebec. The inhabitants of the former French territories in Canada were distinct from British settlers in that they were French speaking and catholic, and they were granted legal protections for their religion and customs under the 1774 Quebec Act.5 The province of Quebec, as acquired in 1763 by Britain, was divided in 1791 into Upper Canada (now Ontario) and Lower Canada (now Quebec).6 During and after the American Revolution (1775–1783), many British Royalists left the American colonies. While the American Revolution was first and foremost a war of independence, the considerable number of loyalists who maintained their allegiance to the British crown also turned it into a civil 1 Bloemraad, 23. 2 There were a couple of exceptions to this autonomy, however. See R. Bothwell, The Penguin History of Canada (Toronto: Penguin, 2006), 321. 3 Last amended on 17 April 2009. See http://laws-lois.justice.gc.ca/eng/acts/C-29/index.html. 4 J.H. Elliott, Empires of the Atlantic World, 295, 373. 5 Morton in Kaplan (ed.) (1993), 51. 6 Fransman, 887.

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war.7 According to Gordon Wood, ‘[the loyalists] may have numbered close to half a million, or 20 percent of white Americans. As many as 80,000 of them are estimated to have left the thirteen colonies [for Canada, the West Indies or Britain] during the American Revolution’.8 Maya Jasanoff in turn refers to sixty thousand (white) loyalists who took their 15,000 black slaves with them to some place else in the British empire.9 It was already mentioned above that Canada enacted its first Citizenship Act in 1946, which entered into force on 1 January 1947.10 Until then Canadians had been British subjects governed by the 1914 British Nationality and Status of Aliens Act, as subsequently implemented by Canada in the form of the 1914 Canadian Naturalization Act.11 Before promulgating the 1946 Act, Canada had enacted a number of ad hoc instruments in the field of citizenship – in particular relating to naturalization. However, since the Canadian Parliament, in legislating on these issues, ‘by and large…adhered to the nationality criteria of the English common law’,12 there is no need to discuss them in detail. Suffice it to say that the 1867 Constitution Act had given the Canadian Parliament authority over ‘Naturalization and Aliens’, which resulted in the Aliens and Naturalization Act 1868. The latter was soon replaced by the Aliens and Naturalization Act 1881.13 In 1914 the British Nationality and Status of Aliens Act was issued by Britain and implemented in Canada in the same year. The British Act was meant to render granting imperial nationality uniform throughout the Dominions by requiring five years’ residence in any Dominion of the empire, while previously five years’ residence in Britain itself was required. The individual Dominions were nonetheless free to grant local nationality on the terms they saw fit.14 Developments that pointed to a move towards independence were the creation of the status of ‘Canadian citizen’ as established under the Immigration 7

J.H. Kettner, The development of American citizenship, 1608–1870 (Chapel Hill, nc: University of North Carolina Press, 1978), 174. 8 G.S. Wood, The Radicalism of the American Revolution (New York: Vintage Books, 1991), 176. See also R. Bothwell, The Penguin History of Canada, 111–112; B.W. Higman, A Concise History of the Caribbean, 162. 9 M. Jasanoff, Liberty’s Exiles. American Loyalists in the Revolutionary World (New York: Vintage 2011), 6. For the exact numbers, see the book’s appendix called ‘measuring the diaspora’. 10 Fransman, 889. 11 Reproduced in R.W. Flournoy and M.O. Hudson, A collection of nationality laws of various countries (New York: Oxford University Press, 1929). 12 Galloway, 210. 13 Tamaki, 69–70; Parry, 442. Reproduced in http://ia600303.us.archive.org/11/items/ naturalizationna00howeuoft/naturalizationna00howeuoft.pdf. 14 Tamaki, 70–71.

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Act 1910, as well as that of ‘Canadian national’ under the Canadian Nationals Act 1921.15 The former status did not mean that Canada was an independent nation-state but set out who was permitted to enter and live in Canada by designating those British subjects who were born, naturalized or domiciled in Canada.16 It has thus been argued that the term ‘Canadian citizen’ ‘was employed merely to provide a convenient term for the purposes of immigration and deportation’.17 The status of ‘Canadian national’, as created under the Canadian National Act 1921, was defined as Canadian citizens, their wives, and any children born out of Canada to a Canadian father.18 Apparently, the 1921 Act only served one single purpose, namely ‘to deal with the demand by the International Court of Justice that countries only be able to nominate their own nationals for membership of that court’.19 Growing nationalism and Canada’s bigger international stature after wwii led to domestic calls for a separate Canadian Citizenship Act, which would eventually enter into force on 1 January 1947 and repeal both the Canadian Naturalization Act of 1914 and the Canadian Nationals Act of 1921.20 Following the Canadian example, other former British colonies drafted their own Citizenship Acts in the aftermath of wwii.21 A considerable number of former colonies, however, remain tied to Britain as part of the Commonwealth of Nations.22 This includes Canada, where the British monarch is Head of State and is represented by the Governor-General. One author speculates that the 15 16

17 18

19 20 21 22

Reproduced in R.W. Flournoy and M.O. Hudson, A collection of nationality laws of various countries. Article 2(B) of the 1910 Act read as follows: ‘“Canadian citizen” means (i) a person born in Canada who has not become an alien; (ii) a British subject who has Canadian domicile; or (iii) a person naturalized under the laws of Canada who has not subsequently become an alien or lost Canadian domicile’. Galloway (213) comments: ‘Clive Parry has justifiably commented that one sees in the statute a parliamentary intent to assert its authority to identify individuals as citizens, but to do so in a way that did not threaten confrontation with colonial superiors’. Tamaki, 72. Article 2 of the 1921 Act. Tamaki (72) points out that conflicts between the Acts of 1910 and 1921 sometimes led to anomalous results: ‘For instance, a wife of a “Canadian citizen” under the Immigration Act is a Canadian national under the Canadian nationals Act, but she is not necessarily a “Canadian citizen” with a right of entry into Canada under the Immigration Act’. Galloway, 211. For historical remarks by the author of this Act, see Martin in Kaplan (ed.) (1993). For example the 1948 Australian Citizenship Act. J. Mann, “The evolution of Commonwealth citizenship, 1945–1948 in Canada, Britain and Australia,” Commonwealth & Comparative Politics 50, no. 3 (2012).

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great practical benefits connected to British subjectship for a long time were an even greater hindrance to the formation of a separate Canadian identity and nationality than the problem of divided allegiance presented by the internal French-English relationship.23 An important aspect of the 1946 Act was that marriage did not have any effect on the nationality status of a married woman, neither for Canadian women marrying foreigners nor for foreign women marrying Canadian citizens. George Tamaki notes that this meant a return to the original common-law position in respect of this issue.24 In fact, the 1946 Act ‘made Canada the first nation in the Commonwealth to recognize the separate and independent status of women’.25 It has been claimed that Canadian citizenship does not lead to a great number of rights. Perhaps the most significant omission of the Citizenship Act, one author therefore submits, is not identifying the responsibilities and rights which attach to the status.26 Read in conjunction with the Canadian Charter of Rights and Freedoms which ‘deliberately left citizens with few advantages over other residents of Canada’,27 it seems that Canadian nationality is mainly relevant to secure voting rights as well as the unconditional right to enter and leave the country. The 1946 Act would be amended over the years but remained operative until 15 February 1977, when a new Canadian Citizenship Act entered into force that introduced several modifications. The new Act did away with the difference between children born in and out of wedlock, and it reduced the age of majority from twenty-one to eighteen; the residence requirement for naturalization was dropped from five to three years; multiple nationality was accepted, so that Canadians naturalizing abroad did not lose their citizenship, while foreigners naturalizing in Canada were not required to relinquish their nationality of origin (under the 1946 Act minor children of a Canadian father who naturalized abroad also lost their citizenship); and prolonged residence abroad, finally, was no longer a ground for loss of Canadian citizenship. Apart from very few exceptions,28 no major citizenship law was passed until 2008–2009, when a particularly important reform took place. Bill C-37, 23 24 25 26 27

28

Morton in Kaplan (ed.) (1993), 55. Tamaki, 79. Martin in Kaplan (ed.) (1993), 69. Galloway, 205. See Morton in Kaplan (ed.) (1993), 60. Sections 3, 6, and 23 of the 1982 Canadian Charter of Rights and Freedoms refer to rights of citizens. The sections deal with ‘democratic rights’, ‘mobility rights’ and ‘minority language educational rights’, respectively. The charter can be found at: http://laws-lois.justice.gc.ca/eng/Const/page-15.html. Winter (13, footnote 19) notes that ‘for example, in order to reduce the risk of creating stateless persons, in 2005, the 1977 Citizenship Act was amended to relieve people who

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introducing the ‘repatriation clause’, came into effect on 17 April 2009. The bill addressed the situation of so-called ‘Lost Canadians’, defined by Elke Winter as individuals who were born in Canada, and/or have a Canadian parent, but who lack or have lost citizenship due to provisions of the 1947 Citizenship Act that were overhauled in the 1977 Citizenship Act, but not rectified retroactively…[The repatriation clause] promises to rectify past discriminations mostly based on female gender, age (in the case of minors), anachronistic marriage rules and multiple citizenship.29 While the redress of the Lost Canadians’ situation attracted much public sympathy in Canada, the reform also raised criticism for being a move away from Canada’s celebrated multiculturalism by emphasizing the kinship basis of the Canadian state ‘and advanc[ing] a vision of the “authentic” Canadian replete in masculinity, racialized Whiteness and the moral worthiness of the exalted subject’.30 There were at least four legal categories of Lost Canadians, and the majority of persons who may be restored or given Canadian citizenship by virtue of the repatriation clause currently live in the United States: 1. 2. 3. 4.

People naturalized in Canada who subsequently lived outside the country for more than 10 years prior to 1967; People born abroad to a Canadian parent before the 1977 Act entered into force on 15 February 1977; People who lost their citizenship between 1 January 1947 and 14 February 1977 because they or their parent acquired the…citizenship of another country; and Second- and subsequent generation Canadians born abroad [i.e. born abroad to a Canadian parent who was also born abroad] since the 1977 Act entered into force.31

So what did the 2008 amendment precisely come down to? It essentially remedied the problem that ‘while the 1976 Act enabled children to inherit the

lost their citizenship as minors between 1947 and February 1977 because they or their parents became citizens of another country; these people no longer had to become permanent residents of Canada in order to resume Canadian citizenship’. 29 Winter, 6–7. 30 Harder, 211. 31 Becklumb.

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citizenship of either of their parents, regardless of wedlock situation, removed the prohibition against dual nationality, and shifted the obligation to take action to affirm one’s citizenship to the second generation born abroad, these provisions were not retroactive’.32 This implied a division of the Canadian population into three groups, with different nationality rules pertaining to each of them: those born before 1 January 1946; those born between 1 January 1946 and 14 February 1977; and those born after 14 February 1977. The 2008 amendment effectively removed the 1946–1977 category by introducing the repatriation clause.33 While an amendment along the lines of the repatriation clause that was ultimately accepted had been discussed for many years and therefore did not come as a surprise, the simultaneous introduction of the so-called ‘firstgeneration limitation’ did. Under can 3(1)(b) in conjunction with can 3(3)(a), children born outside Canada only acquire Canadian citizenship if at least one Canadian parent was born in Canada – i.e. had acquired Canadian citizenship iure soli – or is a naturalized Canadian citizen. The government justified the first-generation limitation by stating that ‘under the old rules, it was possible for Canadians to pass on their citizenship to endless generations born outside Canada. To protect the value of Canadian citizenship for the future, the 2009 law generally limits citizenship by descent to one generation born outside Canada’.34 It has been suggested in the literature that this development was partly triggered by the controversy surrounding the evacuation of dual Canadian-Lebanese nationals from Lebanon in 2006 following Israeli bombardments. There was a vehement public debate at the time on whether these persons, residing in the country of their or their ancestors’ origin, were not merely Canadian ‘citizens of convenience’.35 While the alleged aim of the first-generation limitation was thus to protect the value of Canadian citizenship and limit the number of cases of dual nationality, the risk of creating statelessness was recognized as well. In order to 32 33

Emphasis added. Harder, 210. This also implies that the 2008 amendment does not ‘redress the harms caused to people whose contested claims to citizenship stem from pre-1946 laws and policies’. Harder, 211. 34 http://www.cic.gc.ca/english/citizenship/rules_2009.asp. 35 Harder and Zhyznomirska, 301. The authors critically assess the public outrage by stating that ‘the certainty with which the ‘citizens of convenience’ accusation was asserted is belied by the weakness of the evidence to either support or dispute it’. See also A. Macklin, “The Securitisation of Dual Citzenship,” in Dual Citizenship in Global Perspective, From Unitary to Multiple Citizenship, ed. P. Kivisto and T. Faist (New York: Palgrave Macmillan, 2007).

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prevent statelessness among children born under these circumstances, can 5(5) states that the Minister shall, on application, grant citizenship to a person who (a) is born outside Canada [after 17 April 2009]; (b) has a birth parent who was a citizen at the time of birth; (c) is less than 23 years of age; (d) has resided in Canada for at least three years during the four years immediately before the date of his or her application; (e) has always been stateless; and (f) has not been convicted [for a number of offences listed in the Act]. The Canadian Refugee Council has critically stated that it remains unclear on what basis a child can get access to Canada to satisfy the three years’ residency requirement without holding a Canadian passport.36 Cases of stateless children born outside Canada to a Canadian parent who was also born abroad have been in the news.37 Indeed, as noted by unhcr, ‘while [can 5(5)] generally accord[s] with Canada’s obligations under Articles 1 and 4 of the 1961 Convention, this rule still creates a risk that children of Canadian nationals born abroad would remain stateless for some years during their childhood, which raises concerns on account of developments in international human rights law’.38 The same unhcr report also rightly points at another problem under Canadian law: In compliance with Article 2 of the 1961 Convention, [can 4(1); mode A03a] also provides that foundlings under the age of seven are deemed to have been born in Canada, and thus to be Canadian citizens, unless within seven years of being found it is demonstrated that the person was not born in Canada. However, [can 14(1); mode L14] does not provide for retention of Canadian citizenship where it is proved that a foundling was 36

Stating that ‘in practice, given the lack of solution in the Citizenship Act, parents of stateless children would likely need to turn to the immigration process: i.e. sponsor their child as a permanent resident and then apply for citizenship for the child once in Canada. The immigration process however does not solve the problem of how the stateless child is going to travel to Canada without a passport’. See http://ccrweb.ca/documents/citizenship09 .htm. 37 http://news.nationalpost.com/2010/11/26/high-flying-professionals-producing-a -generation-of-stateless-children/. 38 unhcr, “Statelessness in the Canadian context: an updated discussion paper,” (2012), 34. See also para. 52 of unhcr, “Guidelines on Statelessness No. 4.”

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born outside Canada within the stated period, even where revocation would result in statelessness.39 Some remarks are also pertinent regarding the often-heard claim that an emphasis on birthplace (ius soli) leads to more inclusive citizenship policies than those that are descent-based (ius sanguinis). Yet, as Ayelet Shachar has observed, ‘several jus sanguinis polities have proven better able than the classic jus soli countries of North America to address the scenario of a young child entering a country with her migrant parents’.40 Taking the case Romans v. Canada (2004) as an example, Shachar claims that ‘foreign-born children, unlike any siblings who are natural-born citizens, are subject to potential removal, exclusion and expulsion. Both Canada and the United States…do not grant children who have arrived in these countries at a young age the basic security and protection that attaches to citizenship: the right to indefinitely remain in the country’.41 Romans had arrived in Canada together with his parents as an eighteenmonth-old infant. Not being aware that they had to file for naturalization separately on behalf of the child when they naturalized five years after their arrival, the parents became Canadian citizens while Romans remained a lawful permanent resident. This turned out to have grave consequences when Romans – displaying symptoms of schizophrenia – was convicted for several criminal offences as a teenager. It was subsequently ordered that he be deported because, as Shachar notes, ‘courts in Canada (as well as in the United States) hold long-term permanent residents who arrived as young children to the same standards as adult immigrants’.42 The observation by Aleinikoff et al. is also relevant in this connection, that ‘all countries with expansive jus soli rules authorize deportation of noncitizen parents’.43 While countries in Europe admittedly prefer ius sanguinis over ius soli, the lack of emphasis on birthplace as seen in Canada and the United States allows 39 unhcr, “Statelessness in the Canadian context: an updated discussion paper,” 34. 40 A. Shachar, The Birthright Lottery. Citizenship and Global Inequality (Cambridge, Massachusetts: Harvard University Press, 2009), 125. 41 Ibid., 119. 42 Ibid., 118. 43 T.A. Aleinikoff et al., Immigration and Citizenship. Process and Policy (St. Paul, mn: West Publishing, 2011), 78. Much more protection against deportation seems to exist in Europe under Article 8 of the echr, which protects family life and private life. See e.g. M. Bruins and P. Boeles, “Case law on Article 8 of the European Convention of Human Rights – A Survey,” (Leiden: Institute of Immigration Law, 2006).

143

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Europe to be more flexible in granting children like Romans sufficient protection. Many European countries have a form of ‘socialization-based acquisition’, meaning that they provide for the acquisition of citizenship by a person (minor or adult) who, as a minor, had a certain period of residence or schooling in the country.44 Bibliography Beaudoin, Gérald A. “La perte de la nationalité Canadienne.” Revue juridique et politique. Indépendance et coopération 25, no. 4 (1971): 627–632. Becklumb, Penny. “Bill C-37: An Act to amend the Citizenship Act.” 2008. http://www .parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?Language=E&ls=c 37&source=library_prb&Parl=39&Ses=2. Bloemraad, Irene. Becoming a Citizen. Incorporating Immigrants and Refugees in the United States and Canada. Berkeley: University of California Press, 2006. Boyer, Pierre, Linda Cardinal and David Headon, eds. From Subjects to Citizens: A Hundred Years of Citizenship in Australia and Canada. Ottawa: University of Ottowa Press, 2004. Demirjian, Annie, Douglas Gray and David Wright. The 1947 Canadian Citizenship Act: Issues and Significance. Ottawa: Consulting and Audit Canada, 1996. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 886–900. Galloway, J. Donald. “The Dilemmas of Canadian Citizenship Law.” Georgetown Immigration Law Journal 13 (1999): 201–231. Hancock, M. “Naturalization in Canada.” In The Legal Status of Aliens in Pacific Countries, edited by Norman Mackenzie. 88–100. London: Oxford University Press, 1937. Harder, Lois. “‘In Canada of all places’: national belonging and the lost Canadians.” Citizenship Studies 14, no. 2 (2010): 203–220. Harder, Lois and Lyubov Zhyznomirska. “Claims of belonging: Recent tales of trouble in Canadian citizenship.” Ethnicities 12, no. 3 (2012): 293–316. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 152–164. Kaplan, William. The Evolution of Citizenship Legislation in Canada. Ottawa: Multiculturalism and Citizenship Canada, 1991. Kaplan, William, ed. Belonging. The Meaning and Future of Canadian Citizenship. Montreal: McGill-Queen’s University Press, 1993. 44

See mode A07 in M. Vink, O. Vonk, and I. Honohan, “Modes of Acquisition of Citizenship in Europe.”

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Knowles, Valerie. Forging our Legacy. Canadian Citizenship and Immigration, 1900–1977. Canada: Citizenship and Immigration Canada, 2000. Morel, André. “Nationalité et immigration au Canada.” Revue juridique et politique. Indépendance et coopération 25, no. 4 (1971): 615–626. Parry, Clive. Nationality and Citizenship Laws of The Commonwealth and the Republic of Ireland. London: Stevens&Sons, 1957, p. 431–523. Tamaki, George T. “The Canadian Citizenship Act, 1946.” University of Toronto Law Journal 7, no. 1 (1947): 68–97. Winter, Elke. “(Im)possible citizens: Canada’s ‘citizenship bonanza’ and its boundaries.” Citizenship Studies 16, no. 1 (2012): 1–17. Winter, Elke and Marie-Michèle Sauvageau. “La citoyenneté canadienne dans la presse écrite anglo-canadienne et franco-québécoise: convergence ou divergence?”. Canadian Journal of Political Science 45, no. 3 (2012): 553–578.

Descent (born in the country) Descent (born abroad)

A01a

A05

A03b A04

A03a

A02b

A02a

Born stateless Establishment of paternity Birth in country (acquisition after birth)

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings

short description

idmode

A01b

Canada

modesacq

n.a. n.a. n.a.

No provision

Automatic

n.a.

n.a.

Person is found in Canada of unknown parentage and is younger than 7 years. n.a. n.a.

Person is born abroad to a citizen otherwise than by descent; Person is born to a citizen by descent, is under the age of 23 years, has resided in Canada for at least 3 out of 4 years immediately predating the application, has always been stateless, and has not been convicted for certain offences. Person is born in Canada. Unless parents are foreign diplomats. n.a.

Automatic; Registration (entitlement)

Automatic

n.a.

conditions

n.a.

procedure

No provision No provision

can 4(1)

No provision

can 3(1)a, 3(2)

can 3(1)b, 3(3)a; can 5(5)

No provision

articles

Canada

145

short description

Ordinary naturalization

Socialization based acquisition Spousal transfer Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension

idmode

A06

A07

A13 A14

A12

A08 A09 A10 A11

Canada

modesacq

(Table continued)

No provision can 5(2)

No provision

No provision No provision No provision No provision

No provision

can 5(1)

articles

n.a. Naturalization (entitlement)

n.a.

n.a. n.a. n.a. n.a.

n.a.

Naturalization (entitlement)

procedure

n.a. Person is a minor who is permanently resident in Canada, and whose parent acquires citizenship and has parental authority over the child.

n.a.

n.a. n.a. n.a. n.a.

Person has been resident in Canada for 3 out 4 years immediately preceding the application. Other conditions: adequate knowledge of French or English as well as of Canada and the responsibilities and privileges of citizenship, no extradition order issued against the person, and no danger to public security. n.a.

conditions

146 chapter 5

A25 A26 A27

A24

A19 A20 A21 A22 A23

A18

A17

A16

A15

Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements Public service Financial assets Acquisition of citizenship for other reasons

Extension to other relatives Reacquisition

No provision No provision can 5(4)

can 5(4)

No provision No provision No provision No provision No provision

No provision

No provision

can 11

No provision

Naturalization (discretionary) n.a. n.a. Naturalization (discretionary)

n.a. n.a. n.a. n.a. n.a.

n.a.

n.a.

Naturalization (entitlement)

n.a.

n.a. n.a. Person’s situation is one of special and unusual hardship.

Person has rendered exceptional services to Canada.

n.a. n.a. n.a. n.a. n.a.

n.a.

Person is a former citizen and has been permanently resident in Canada for 1 year immediately preceding the application. Reacquisition can be refused on grounds relating to previous criminal behaviour or public security. n.a.

n.a.

Canada

147

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition

L01

L10

L07 L08 L09

L06

L05

L04

Non-renunciation (acquisition by naturalization)

short description

idmode

L02 L03

Canada

modesloss

(Table continued)

n.a. n.a. Withdrawal

n.a.

No provision

n.a.

No provision

No provision No provision can 10

n.a.

n.a.

n.a. n.a.

Release

procedure

No provision

No provision

No provision No provision

can 9(1)

articles

n.a. n.a. Person acquired citizenship based on false representation, fraud, or concealment of material facts. Loss can result in statelessness. n.a.

n.a.

n.a.

n.a.

Person is of full capacity, is or will become a citizen of another country, and resides abroad. n.a. n.a.

conditions

148 chapter 5

L15

L13b L14

L13a

L12

L11

Loss for other reasons

Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship

No provision

No provision can 14(1)

No provision

No provision

No provision

n.a.

n.a. Lapse

n.a.

n.a.

n.a.

n.a. Person acquired citizenship as a foundling, was therefore deemed to have been born in Canada, and the contrary is proved within 7 years from the date the person was found. Loss can result in statelessness. n.a.

n.a.

n.a.

n.a.

Canada

149

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Chile Chile, which the Incas of Peru had tried to conquer in vain in the period preceding the arrival of the Spanish,1 historically belonged to the viceroyalty of Peru and declared itself independent from Spain on 12 February 1818.2 Chile’s territory at that time was much smaller than it is today and the country had, by the standards of other newly created republics in Latin America, a very compact territory inhabited by a homogeneous population.3 The acquisition and loss of Chilean nationality was addressed in four Constitutions that succeeded each other rapidly in the years immediately after independence.4 At present, the legal provisions pertaining to Chilean nationality law are primarily found in Chapter 2 of the 1980 Constitution and in Decree no. 5.142 of 1960.5 Reading these documents next to each other is complicated by the fact that although the Decree’s ‘final version’ (última versión) dates from 26 June 1981, and is therefore more recent than the constitutional amendment, it still refers to the old Articles 5 and 6 from the Constitution of 1925. Acquisition iure soli has always been the main ground for acquisition, with acquisition iure sanguinis increasingly coming to occupy a more important role over the years. The conditions concerning automatic acquisition of nationality for children born abroad (A01b) are presently that at least one parent or grandparent acquired nationality by birth in Chile, by ordinary naturalization, or by naturalization granted as a special favour. Where Argentinean law limits the transmission of nationality to the first generation born abroad, Chilean law thus goes further by also providing for automatic acquisition for the second generation born abroad. The role of ius sanguinis has clearly expanded in recent years if we consider that until 2005 at least one parent of a child born abroad – not also a grandparent – must have held Chilean nationality by birth in Chile, by ordinary naturalization, or 1 R.A. Hudson, Chile, a country study, 3rd ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 1994), xxxv. 2 See Alejandro San Francisco in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 209. 3 L. Bethell, ed. The Cambridge History of Latin America, vol. 3 (New York: Cambridge, 1984), 583–584. The War of the Pacific (1879–1883), for example, resulted in Chile annexing a portion of Peru’s territory. See R.A. Hudson, Peru, a country study, 4th ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 1993), 3. 4 These four Constitutions were dated 1822, 1823, 1828 and 1833. The latter, however, would remain unmodified for fifty years. See Schmidt-Schlegel, 127. 5 The Constitution and Decree entered into force on 11 March 1981 and 29 October 1960, respectively. They are available at http://pdba.georgetown.edu/Constitutions/Chile/chile05 .html#mozTocId365088 and http://www.leychile.cl/Navegar?idNorma=19444.

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151

by naturalization. It was additionally required that one parent, not necessarily the parent holding Chilean nationality, resided abroad in the service of the government (Article 10(2)) or that the child established residence in Chile for at least one year (Article 10(3)).6 Conditions were even stricter before the entry into force of the 1980 Constitution, as acquisition of Chilean nationality in case of birth abroad was dependent on permanent residence of the person in the country.7 By making it easier to acquire Chilean nationality under the ius sanguinis principle, the risk of statelessness among children born abroad to Chilean parents has obviously decreased. All children born in Chile automatically acquire the country’s nationality, unless the parents are foreign diplomats or ‘in transit’. As the meaning of in transit is not defined in the law, and since legal doctrine does not elaborate on it,8 we can assume that it should be understood in its everyday sense – that is, as passing by or residing temporarily in the country. Whether a person is in transit is decided by the courts on a case-by-case basis, but children born to illegally residing parents are covered by A02a if their parents’ length of stay is of such a nature that they are no longer deemed to be in transit.9 Children of diplomats or parents in transit can, however, obtain Chilean nationality by declaration within one year after reaching the age of twenty-one years (A05; see also the country analysis on Nicaragua). In that case, they are treated on an equal footing with those who acquired nationality automatically.10 As in Argentina, the law in Chile is silent on the matter of adoption. And also similar to its neighbouring country, there is no consensus regarding the question of acquisition of nationality through adoption. Authoritative guidance is provided, however, by Ribera Neumann who is of the opinion that the ius sanguinis principle simply applies in these cases.11 Regarding the matter of naturalization, called nacionalización in Chile and according to Miguel Angel Fernández González a right under Chilean law,12 the law is no longer in accordance with the legal practice as regards the renunciation requirement. Although it is still listed in the Decree as a condition for 6 7

8 9 10 11 12

Fernández González (2001), 180–181. Article 5(2) of the Constitution of 1925 stated: ‘Son Chilenos: […] Los hijos de padre o madre chilenos, nacidos en territorio extranjero, por el solo hecho de avecindarse en Chile’. See http://www.leychile.cl/Navegar?idNorma=241203&tipoVersion=0. Cea Egaña, 300. Fernández González (2001), 178–179. Ibid., 179. See the email correspondence with Ribera Neumann in Von Reden, 35. Fernández González (2001), 182.

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naturalization, the renunciation requirement was repealed by the most recent 2005 reform.13 As a result, the only dual nationality treaty concluded so far by Chile – the treaty with Spain14 – has lost all its relevance after the reform. The fact that this dual nationality treaty, as well as those concluded with other Latin American countries, had already lost their relevance for Spain in 1990 has been explained elsewhere.15 It is mentioned by Cea Egaña that Article 10(4), which confers ‘nacionalización por gracia’ has been used approximately eighty times since 1829.16 Since the 2005 reform, Article 11(1) provides that Chilean nationality is no longer automatically lost upon naturalization in another country. Individuals can nonetheless renounce their nationality if they so wish. This acceptance of dual nationality for Chileans naturalizing abroad is in line with the repeal in 2005 of the renunciation requirement upon naturalization in Chile. Previously, Chilean nationality was lost when a citizen naturalized in another country, unless one of two situations applied. First, the person fell within the scope of a dual nationality treaty; or, second, the Chilean national acquired a foreign nationality ‘as a condition for permanent residence or legal equality in exercising civil rights’.17 Bibliography Carmona de la Fuente, Augusto. Examen crítico y comparativo de la nacionalidad. Santiago de Chile: Imprenta nacional, 1925. [837 p; the 1906 Rio Treaty is dis­ cussed   at pages 569–576, where Carmona states that the theme of nationality is only addressed ‘en forma muy ligera y superficial’ in the Treaty (p. 569), since nationality law is a constitutional matter in Latin America which cannot easily be amended by treaty; chapter 4, where the Rio Treaty is mentioned as well, is entitled ‘Los Congresos Internacionales Americanos y el problema de la nacionalidad’.]

13 14

15 16 17

Fernández González (2006), 110. The dual nationality treaty entered into force on 28 October 1958. See Vonk, 284. It is noteworthy that this treaty is the only one that, to this date, has not been revised by an additional protocol. See M. Aguilar Benítez de Lugo, Intervención consular en derecho internacional privado (Sevilla: Universidad de Sevilla, 2005), 36. Vonk, 316. Cea Egaña, 304. ‘Como condición de su permanencia en él o de igualdad juridical en el ejercicio de los derechos civiles con los nacionales del respectivo país’. See Fernández González (2001), 185.

Chile

153

Cea Egaña, José Luis. Derecho Constitucional Chileno. 2nd ed. Santiago de Chile: Ediciones Universidad Católica de Chile, 2008, p. 296–316. Fernández González, Miguel Angel. “La Nacionalidad en la Constitución.” Revista de Derecho (Valdivia) 12, no. 2 (2001): 175–190. http://mingaonline.uach.cl/pdf/revider/ v12n2/art12.pdf [Although relatively recent, this article has become outdated because of the 2005 reform.] ——. “Reformas constitucionales en materia de nacionalidad y ciudadanía.” In La Constitución reformada de 2005. 93–120. Santiago de Chile: Librotecnica, 2006. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 73–80. Jammet Arias, Nathalie. “Comment peut-on être Chilien? Ou la conception chilienne de la nationalité et de la citoyenneté.” Pandora, no. 11 (2012). http://dialnet.unirioja .es/descarga/articulo/4368436.pdf%E2%80%8E. Larrain Valdivieso, Jorge. Falta de nacionalidad o apatridia. Santiago de Chile: Imprenta la Sud-América, 1939. [70 p; with some remarks from page 47 onwards on Chilean legislation against the background of statelessness.] Mercado Bergeret, Ana. “La nacionalidad y su prueba en el derecho chileno y sudamericano.” Tesis (licenciatura en ciencias jurídicas y sociales), Universidad de Chile, 1947. [104 p]. Ribera Neumann, Teodoro. “La nacionalidad chilena ante la jurisprudencia y la práctica administrativa.” Revista de Derecho y Jurisprudencia y Gaceta de los Tribunales, no. 1 (2004): 1–24. ——. La reforma constitucional del año 2005 en lo relativo a la nacionalidad chilena. Santiago de Chile, 2010. Salas Troncoso, Samuel. La nacionalidad. Originaria y adquirida. Santiago: Imprenta Universitaria, 1916. [68 p; part I contains general reflections on nationality law; part II consists of an overview of legislative provisions relating to the conditions for naturalization in Western Hemisphere countries, except Canada and the Caribbean.] Schmidt-Schlegel, Philipp. Das Staatsangehörigkeitsrecht von Brasilien und Chile. Frankfurt am Main: Alfred Metzner Verlag, 1957. Toro Garland, Fernando. “La doble nacionalidad. Comentario a la nueva ley chilena sobre la misma.” Revista de derecho español y americano 3, no. 14 (1958): 339–347. Torres Barnett, Blanca. La naturalización colectiva en el derecho internacional privado y ante la legislación chilena. Santiago de Chile: Editorial Jurídica de Chile, 1951. [‘Collective naturalization’ is defined at 122 as ‘una forma derivativa de adquirir la nacionalidad que compromete a un conjunto de individuos vinculados a determinado territorio por effecto de pasar éste a otra soberanía’.] von Reden, Hans. “A Comparative Analysis on Acquisition and Loss of Nationality in Argentina and Chile.” Bachelor’s thesis. Maastricht University: Faculty of Law, 2010.

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Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012. Zuñiga Urbina, Francisco, ed. Reforma constitucional. Santiago de Chile: LexisNexis, 2005, p. 247–301. [Contains contributions by Avilés Hernández, Quinzio Figueiredo and Ribera Neumann.]

Descent (born in the country) Descent (born abroad)

A01a

A03a A03b A04 A05

A02b

A02a

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth)

short description

idmode

A01b

Chile

modesacq

No provision No provision No provision Const 10(1), chi, 10

No provision

Const 10(1)

Const 10(2)

No provision

articles

n.a. n.a. n.a. Declaration

n.a.

Automatic

Automatic

n.a.

procedure

n.a. n.a. n.a. Person is born in Chile to foreign diplomats or parents in transit. Other conditions: declaration is made within 1 year after reaching the age of 21, in front of the competent public authority, and the person must prove beyond doubt to fall in one of the two categories.

Person is born abroad to a citizen. Other conditions: at least one parent or grandparent acquired citizenship by birth in Chile, by ordinary naturalization, or by naturalization granted as a special favour. Person is born in Chile. Unless parents are foreign diplomats or in transit. n.a.

n.a.

conditions

Chile

155

short description

Ordinary naturalization

Socialization based acquisition Spousal transfer Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension

idmode

A06

A07

A08 A09 A10 A11 A12 A13 A14

Chile

modesacq

(Table continued)

No provision No provision No provision No provision No provision No provision chi, 2

No provision

Const 10(3), chi, 2, 3

Articles

n.a. n.a. n.a. n.a. n.a. n.a. Naturalization (entitlement)

n.a.

Naturalization (entitlement)

Procedure

n.a. n.a. n.a. n.a. n.a. n.a. Person’s parent has become a citizen by naturalization. Other conditions: person has reached the age of majority, has lived for a continuous period of at least 5 years in the country, is entitled to permanent residence, renounces

Person is 21 years or older, has lived for a continuous period of at least 5 years in the country, and is entitled to permanent residence. Other conditions: renunciation of citizenship of another country, no convictions for delicts or crimes and no criminal proceedings initiatives against the person for such offences, source of income sufficient for support, no danger to social and political order, good morals, and no threat to Chilean interests and security. n.a.

conditions

156 chapter 5

Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

Public service Financial assets Acquisition of citizenship for other reasons

A17 A18

A25 A26 A27

A24

A19 A20 A21 A22 A23

Extension to other relatives Reacquisition

A15 A16

No provision No provision No provision

Const 10(4)

No provision No provision No provision No provision No provision

No provision Const 11 (final part) No provision No provision

Naturalization (discretionary) n.a. n.a. n.a.

n.a. n.a. n.a. n.a. n.a.

n.a. Naturalization (discretionary) n.a. n.a.

Person has rendered outstanding services to the country and is accordingly awarded naturalization ‘by gratitude’. n.a. n.a. n.a.

n.a. n.a. n.a. n.a. n.a.

citizenship of another country, no convictions for delicts or crimes and no criminal proceedings initiatives against the person for these offences, source of income sufficient for support, no danger to social and political order, good morals, and no threat to Chilean interests and security. n.a. Person lost Chilean citizenship under modes L01, L03, or L15. n.a. n.a.

Chile

157

short description

Renunciation of citizenship

Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse

idmode

L01

L02 L03 L04

L11 L12

L07 L08 L09 L10

L06

L05

Chile

modesloss

(Table continued)

No provision No provision

n.a. n.a.

n.a. n.a. n.a. n.a.

n.a.

No provision

No provision No provision No provision No provision

n.a.

n.a. n.a. Withdrawal

Declaration

Procedure

No provision

No provision No provision Const 11(2)

Const 11(1)

Articles

n.a. n.a.

n.a. n.a. n.a. n.a.

n.a.

Person becomes a citizen of another country by naturalization. Renunciation only takes effect if another citizenship is actually acquired. n.a. n.a. Person has in any way assisted the enemy in a war in which Chile was engaged. Loss can result in statelessness. n.a.

conditions

158 chapter 5

L15

L13b L14

L13a

Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons Const 11(3)–(4)

No provision No provision

No provision

Withdrawal

n.a. n.a.

n.a.

Person’s naturalization under modes A06 or A24 is revoked. Loss can result in statelessness.

n.a. n.a.

n.a.

Chile

159

160

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Colombia While the creation of a new viceroyalty in the south – that of Río de la Plata in 1776 – had a far-reaching impact as was seen in the chapter on Argentina, the creation of the northern viceroyalty of New Granada in 1739 was much less radical.1 New Granada encompassed what are now Colombia, Ecuador, Panama, and Venezuela. The latter, however, became a captaincy-general in 1777. After Colombian independence, declared on 20 July 1810, the viceroyalty of New Granada was merged with the captaincy-general of Venezuela by Simón Bolívar on 17 December 1819,2 thus creating ‘Gran Colombia’ (Great Colombia).3 This territory had already disintegrated by 1830, falling apart into the sovereign countries that we know now. Panama only broke loose from Colombia in 1903.4 Just before the break-up of Gran Colombia, a Constitution was enacted containing the first provisions relating to Colombian nationality.5 The relevant legislation concerning nationality matters is currently found in Title 3, Chapter 1 of the Constitution6 and the 1993 Nationality Act.7 In contrast to most other Latin American countries where mode A01a (ius sanguinis acquisition) is irrelevant due to the domination of A02a (ius soli acquisition), the former mode is relevant in Colombia. This is due to the way the acquisition rule of Article 96(1)a of the Constitution and col 1(1)a is formulated. Thus, both Articles read that everyone born in Colombia to noncitizen parents domiciled in the country at the time of birth automatically acquires Colombian nationality (A02a).8 This domicile requirement means 1 L. Bethell, ed. The Cambridge History of Latin America, 403. It is recalled that the viceroyalties of New Spain and Peru had already been established in the sixteenth century. 2 See Daniel Gutiérrez Ardila in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 442. 3 R.A. Hudson, Colombia, a country study, 5th ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 2010), 18; M. Arana, Bolívar. American Liberator (New York: Simon&Schuster, 2013), 150, 246. 4 E. Williamson, The Penguin History of Latin America, 589. 5 Moosmayer, 15. 6 The Constitution entered into force on 4 July 1991 and the provisions on citizenship were last amended by means of law 1/2002, which entered into force on 31 January 2002. See http://www.secretariasenado.gov.co/senado/basedoc/cp/constitucion_politica_1991 _pr002.html. 7 The Nationality Act (Ley no. 43 of 1993) entered into force on 1 February 1993 and was last amended by law 962/2005. See http://www.secretariasenado.gov.co/senado/basedoc/ ley/1993/ley_0043_1993.html. 8 Domicile implies permanent residence as can be read in col 2: ‘Por domicilio se entiende la residencia en Colombia acompañada del ánimo de permanecer en el territorio nacional de acuerdo con las normas pertinentes del Código Civil’.

Colombia

161

that one cannot speak of a universal ius soli rule as found throughout most of the Western Hemisphere. In addition, the Articles provide that everyone born in the country to citizens iure soli (the so-called naturales9) or iure sanguinis (the so-called nacionales) becomes a citizen (A01a). This emphasis on descent from a national for the acquisition of citizenship means that Colombia, exceptionally for Latin America, is not primarily a ius soli country. Children born abroad to a Colombian parent, finally, automatically acquire citizenship by establishing residence in Colombia or by registering with a Colombian consulate. Although the latter possibility is only mentioned in the Constitution and not in the Nationality Act, it can be assumed that the Constitution prevails. Persons who acquired their citizenship by birth on Colombian territory are, as we have seen, considered naturales. Those who acquired it iure sanguinis or by naturalization are called nacionales. These two categories do not, however, correspond to another important distinction made under Colombian law – that is, between citizenship by birth (por nacimiento) and by naturalization (por adopción). While citizenship by birth can be acquired either iure soli or iure sanguinis, a natural is only someone who is a citizen born on Colombian territory. The ius soli rule is complemented by a protection mechanism for children born in Colombia who would otherwise remain stateless. Thus, mode A03b states that, irrespective of the parents’ residence status, such a child acquires Colombian nationality, provided that proof is furnished that the parents’ country of origin does not grant its nationality iure sanguinis to the child.10 This requirement is accepted under unhcr Guidelines on Statelessness No. 4: It is acceptable for Contracting States not to grant nationality to children [born in their territory and otherwise stateless] only if the child concerned can acquire the nationality of a parent immediately after birth and the State of nationality of the parent does not have any discretion to refuse the grant of nationality. States that do not grant nationality in such circumstances are recommended to assist parents in initiating the relevant procedure with the authorities of their State or States of nationality.11 Naturalization, which according to col 4 is ‘a sovereign and discretionary act by the President of the Republic’, is possible after five years’ residence and conditional on compliance with the requirements listed in mode A06. 9 10 11

col 2 explains in greater detail who are considered naturales de Colombia. See for an illustration of this kind of situation the judgment handed down by the cjeu on 11 March 2011 in Case C-34/09 Ruiz Zambrano [2011] ecr I-01177. Discussed in Vonk, 110. Para. 25.

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Naturalized citizens are excluded from certain professions by virtue of col 28.12 Since 1991, dual nationality has been accepted for individuals naturalizing in Colombia, but also Colombian nationals no longer automatically lose their nationality upon naturalization abroad.13 They can, however, voluntarily renounce their citizenship. This is not conditional on holding another citizenship and can therefore result in statelessness. The same is true for the three other grounds for loss under Colombian law. The time limit of ten years in Colombia should be considered a best practice, since ‘the “genuine connection” principle calls for some limits as to the time period after which states can deprive persons of their citizenship, even if that citizenship is acquired by fraud’.14 Colombia grants facilitated access to citizens of Latin American and Caribbean countries, ‘thereby taking into account the principle of reciprocity through operative international treaties’.15 The latter sentence is a bit enigmatic but no doubt refers to the one existing dual nationality treaty with Spain. Considering that no other dual nationality treaties have been concluded since then, it is questionable whether this provision is still very relevant. The rules under modes A06 and A18 read in conjunction with L05 seem to be more important. Neither the ordinary naturalisees covered by A06 nor those with privileged access to Colombian nationality under A18 have to give up their original nationality. Colombians in turn are allowed to keep their nationality upon naturalization abroad (L05), although it of course for the other country to decide whether it requires the renunciation of any foreign nationality as a condition for naturalization. The dual nationality treaty with Spain and its additional protocol entered into force on 7 May 1980 and 1 July 2002, respectively.16 Bibliography García Herreros Salcedo, Orlando. Apuntes de derecho constitucional colombiano. 3rd ed. Bogotá: Universidad Sergio Arboleda, 2011, p. 37–40. 12 13 14

15 16

Such as the position of senator or official in the Colombian armed forces. Velásquez Turbay, 94. See also http://www.refworld.org/docid/3f7d4e4338.html. G.-R. de Groot and M.P. Vink, “Loss of Citizenship: Trends and Regulations in Europe,” 19. The ‘genuine connection’ principle was introduced by the International Court of Justice in the seminal Nottebohm judgment of 1955. See Vonk, 31. col 5. Vonk, 284, 296.

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Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 81–87. Mantilla Rey, Ramón. El estatuto de la nacionalidad colombiana: ensayo. Colombia: Universidad Nacional de Colombia, 1995. [115 p; book was written to comply ‘con una formalidad en la Carrera Diplomática y consular de la República [Colombiana]’, and for that reason probably contains chapters entitled ‘La nacionalidad para el derecho diplomático’ and ‘La nacionalidad para el derecho consular’; pages 19–31 contain a useful short historical overview of Colombian constitutional law on the matter of nationality.] Melendez Ruiz, Rafael A. La nacionalidad adquirida. Bogotá: Tipografía El Voto Nacional, 1922. [44 p; very general booklet on naturalization in which no particular country takes center stage.] Moosmayer, Peter. Staatsangehörigkeitsrecht von Kolumbien, Ekuador und Venezuela. Frankfurt am Main: Alfred Metzner Verlag, 1960. Uribe Iregui, Luis Fernando. “La doble nacionalidad en el derecho internacional.” Thesis, Pontificia Universidad Javeriana, 1977. [194 p; the part on dual nationality as such is in fact relatively short; contains an historical overview of Columbian nationality law in chapter 5.] Velásquez Turbay, Camilo. Derecho constitucional. 3rd ed. Bogotá: Universidad Externado de Colombia, 2008, p. 93–96. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012.

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless

A01a

A06

A05

A04

A03a A03b

A02b

A02a

Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

short description

idmode

A01b

Colombia

modesacq

Naturalization (discretionary)

n.a.

No provision

Const 96(2)a, col 4–5, 9, 13

n.a.

n.a. Automatic

n.a.

Registration (entitlement) Automatic

Automatic

procedure

No provision

No provision Const 96(2)a, col 4–5

Const 96(1)a, col 1(1)a Const 96(1)b, col 1(1)b Const 96(1)a, col 1(1)a No provision

articles

Person has been legally and continuously resident in Colombia for 5 years immediately preceding the application.

n.a.

n.a. Person is born in Colombia and is not entitled to citizenship of another country. Legal residence is not required for the child but the parents have to prove that their country of citizenship does not grant citizenship by descent to the child. n.a.

Person is born abroad to a citizen and establishes residence in Colombia or registers with a Colombian consulate. Person is born in Colombia to non-citizens who are domiciled in the country at the time of birth. n.a.

Person is born in Colombia to a citizen.

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164 chapter 5

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension

A09 A10 A11

A13 A14

A12

A08

Socialization based acquisition Spousal transfer

A07

No provision Const 96(2)a, col 17

No provision

No provision No provision No provision

Const 96(2)a, col 4–5

No provision

n.a. Naturalization (discretionary)

n.a.

n.a. n.a. n.a.

Naturalization (discretionary)

n.a.

n.a. Person is a minor whose parent acquires citizenship by naturalization, has parental authority over the child, and the child is included in the naturalization certificate. Person can express his or her wish to remain a citizen upon reaching the age of majority by taking an oath of loyalty.

n.a.

Person is the spouse of a citizen, or is in a long term term relationship with a citizen and has been legally and continuously resident in Colombia for 2 years immediately preceding the application. Other conditions: see A06. n.a. n.a. n.a.

Other conditions: proficiency in Spanish (except for those knowing an indigenous language spoken in Colombia, who have had secondary or university education in Colombia, or who are older than 65 years), knowledge of basic principles of the Constitution, history and geography of Colombia (with exceptions), proof of employment in the country, and oath of loyalty. n.a.

Colombia

165

short description

Extension to other relatives Reacquisition

Restricted citizenship rights Citizenship of a specific country

Cultural affinity

Presumed citizens

idmode

A15

A17

A19

A20

A18

A16

Colombia

modesacq

(Table continued)

No provision

Const 96(2)c

Const 96(2)b, col 4–5

No provision

col 25

No provision

Articles

n.a.

Naturalization (discretionary)

Naturalization (discretionary)

n.a.

Declaration

n.a.

procedure

Person is a Latin American or Caribbean national by birth and has been continuously resident in Colombia for 1 year immediately preceding the application. Any reciprocity through operative international treaties is taken into account. Person is a member of an indigenous people living in a border region with Colombia (acquisition is on the basis of the reciprocity principle under public treaties). n.a.

Person is a former citizen who lost citizenship due to naturalization abroad when this was still a ground for loss under Article 9 of the Constitution of 1886. Reacquisition can be extended to minor children but not to spouse. One year’s residence and proof of good conduct is required for naturalized citizens who lost their citizenship. n.a.

n.a.

conditions

166 chapter 5

Colombia

short description

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country

modesloss

idmode

L01

L04

L02 L03

A25 A26 A27

A24

A22 A23

Very long residence Refugees Stateless or unclear citizenship Special achievements Public service Financial assets Acquisition of citizenship for other reasons

A21

No provision

No provision No provision

col 23, 24

Articles

No provision No provision Const 96(2)a, col 4–5

No provision

No provision No provision

No provision

n.a.

n.a. n.a.

Declaration

procedure

n.a. n.a. Naturalization (discretionary)

n.a.

n.a. n.a.

n.a.

n.a.

n.a. n.a.

No other conditions. Loss can result in statelessness.

conditions

n.a. n.a. Person has Colombian children and has been legally resident in Colombia for a continuous period of 2 years immediately preceding the application. Other conditions: see A06.

n.a.

n.a. n.a.

n.a.

Colombia

167

short description

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

Other offences

Fraudulent acquisition Non-renunciation (acquisition by naturalization)

idmode

L05

L08

L09

L10

L07

L06

Colombia

modesloss

(Table continued)

Nulllification n.a.

No provision

Nulllification

col 20(a), 21

col 20(b), 21

Withdrawal

n.a.

No provision

col 24

n.a.

procedure

No provision

Articles

Person acquired citizenship by naturalization and committed a crime against the constitutional order or security of Colombia. Loss can result in statelessness. Person acquired citizenship by naturalization and, before settling in Colombia, committed a delict in another country worthy of extradition (time limit: 10 years). Loss can result in statelessness. Person acquired citizenship based on false information (time limit: 10 years). Loss can result in statelessness. n.a.

n.a.

n.a.

conditions

168 chapter 5

L15

L13b L14

L13a

L12

L11

Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

No provision

n.a.

n.a. n.a.

n.a.

No provision

No provision No provision

n.a.

n.a.

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

Colombia

169

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Costa Rica Costa Rica forms part of the Isthmian region, which the Spaniards first tried to conquer in 1508. From 1568 onwards Costa Rica, together with the provinces of El Salvador, Guatemala, Honduras and Nicaragua, formed a separate administrative unit within the Spanish empire as the kingdom of Guatemala.1 The country became a fully independent State on 15 September 1821 and entered the Central American Republic in 1823.2 However, this unity quickly fell apart, with Costa Rica leaving the federation on 14 November 1838. ‘Instead of a united and prosperous independent isthmian nation’, the Cambridge History of Latin America writes, ‘a fragmented and feuding cluster of city states…had emerged by 1870’.3 Others have observed that ‘The period of the United Provinces was…one of Central American polarization impelled by deep divisions among the populace, not the unification originally anticipated by idealists’.4 After gaining independence from Spain on 29 October 1821, Costa Rica enacted its first provisions on nationality by means of the ‘Pacto social fundamental interino de Costa Rica’ on 1 December 1821. Costa Rican nationality law is now covered in Title II of the 1949 Constitution and the 1950 Law on Options and Naturalizations.5 The normal naturalization requirements under A06 do not apply to A08 and to A24, because it is explicitly not mentioned that those falling within these categories ‘have to comply with any other requirements under the law’. As the procedure for naturalization remains unclear from reading Costa Rican legislation, it is assumed that it is discretionary. A provision for A16 no longer exists as the relevant provision reads that it has been ‘tacitly revoked’ after the amendment of Article 16 of the Constitution,

1 H.D. Nelson, Costa Rica, a country study, 2nd ed. (Washington, d.c.: Federal Research Division of the Library of Congress, 1984), 8–10. 2 See the chapters on the other Central American countries for observations on the Central American Republic. 3 L. Bethell, ed. The Cambridge History of Latin America, 471. 4 R.A. Haggerty, El Salvador, a country study, 2nd ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 1990), 9. 5 The Constitution entered into force on 8 November 1949 and was last amended by law no. 8365 of 15 July 2003. See http://pdba.georgetown.edu/constitutions/costa/costa2 .html. The Law on Options and Naturalizations (Ley de Opciones y Naturalizaciones), formerly known as the Aliens and Naturalization Act, entered into force on 29 April 1950 and was last amended by law no. 7514, which entered into force on 27 June 1995. See http://www .tse.go.cr/pdf/normativa/leyopcionesynaturalizaciones.pdf.

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171

to the effect that Costa Rican nationality can no longer be lost and cannot be renounced. It is noteworthy that Costa Rica is much more restrictive than other Central American countries in facilitating the acquisition of citizenship for citizens of fellow Central American and Iberoamerican countries.6 They need to comply with a five-year residence requirement – compared to the normal seven years under A06 – in addition to all other naturalization requirements. These stricter conditions may be related to Costa Rica being by far the most affluent of the five Central American Republics.7 This kind of privileged treatment in matters of nationality has been explicitly accepted by the Inter-American Court for Human Rights in a 1984 judgment, concluding that the provision stipulating preferential treatment in the acquisition of Costa Rican nationality through naturalization, which favors Central Americans, Ibero-Americans and Spaniards over other aliens, does not constitute discrimination contrary to the Convention. [Moreover,] it does not constitute discrimination contrary to the Convention to grant such preferential treatment only to those who are Central Americans, Ibero-Americans and Spaniards by birth.8 As was already said, Article 16 of the Constitution was amended in 1995 so that Costa Rican citizenship can no longer be lost and cannot be renounced (la calidad de costarricense no se pierde y es irrenunciable). This has led, as a quick glance at the Law on Options and Naturalizations will tell, to the tacit revocation of all the loss provisions. Although the sole remaining loss provision where this has not happened – loss due to fraud under cos 18 – may therefore seem incompatible with Article 16 of the Constitution, it should be borne in mind

6 For the concept of Iberoamerica, see the chapter on El Salvador. 7 Costa Rica has traditionally been part of ‘Central America’ in a narrow sense, but Understanding Central America explains how its history is rather different from that of El Salvador, Guatemala, Honduras, and Nicaragua. Excluded from the Central American region altogether are English-speaking Belize and Panama, the latter technically being outside Central America and formerly part of Colombia. See J.A. Booth, C.J. Wade, and T.W. Walker, Understanding Central America, 5–6. 8 Emphasis added. Para. 68 of Advisory Opinion OC-4/84 of 19 January 1984. It is observed, however, that the distinction made under Costa Rican law between citizens by birth and by naturalization as regards facilitated access to Costa Rican nationality was deemed a violation of Article 20 of the Convention by Judge Buergenthal in his dissenting opinion. On this judgment, see also Chapter 3.

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that the procedure under cos 18 is one of nullification. The citizenship of someone who loses citizenship under this Article is therefore not revoked but nullified – meaning that the person is considered never to have been a citizen in the first place.9 This means that Article 16, stating that citizenship can never be lost, is fully compatible with cos 18. The prohibition on the renunciation of Costa Rican nationality is not in line with AmCHR 20(3) – a Convention concluded in the country’s own capital San José in 1969. The dual nationality treaty with Spain and its additional protocol entered into force on 21 January 1965 and 1 December 1998, respectively.10

Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 88–95. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012. 9 10

G.-R. de Groot and M.P. Vink, “Loss of Citizenship: Trends and Regulations in Europe,” 16–17. Vonk, 284, 296.

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings

Born stateless Establishment of paternity Birth in country (acquisition after birth)

A02b

A03b A04

A05

A03a

Birth in country (2nd generation)

A02a

A01b

Costa Rica

modesacq

cos 11b

Const 13(4), cos 1(4) No provision No provision

No provision

Const 13(3), cos 1(3), 10

Const 13(1), cos 1(1) Const 13(2), cos 1(2), 9

articles

Naturalization (discretionary)

n.a. n.a.

Automatic

n.a.

Registration (entitlement)

Registration (entitlement)

Automatic

procedure

Person is born in Costa Rica, older than 25 years and does not meet the conditions under A02a. Other conditions: seven years’ residence [assuming that the period can only start to run at age 18], good behaviour, means sufficient for self-support.

Person is an infant found in Costa Rica of unknown parentage. n.a. n.a.

Person is born abroad to a citizen by birth and is registered in the Civil Register by the parent during minority, or registers him/herself before reaching the age of 25. Person is born in Costa Rica to non-citizens and is registered as a citizen by a parent during minority, or registers him/herself before reaching the age of 25. n.a.

Person is born in Costa Rica to a citizen.

conditions

Costa Rica

173

short description

Ordinary naturalization

Socialization based acquisition Spousal transfer

idmode

A06

A07

A08

Costa Rica

modesacq

(Table continued)

Const 14(4)– 14(5), 15

No provision

Const 14(3), 15, cos 2, 11, 15

Articles

Naturalization (discretionary)

n.a.

Naturalization (discretionary)

procedure

Person is the spouse of a citizen and loses his/her original citizenship upon marriage, or has been married and resident in Costa Rica with a citizen for 2 years.

Person is a non-citizen or a citizen other than by birth of Spain, a Central American country or an Iberoamerican country, and has been resident in Costa Rica for at least 7 years. Other conditions: good behaviour, known source of income or occupation sufficient for self-support and that of his/her family, clean criminal record, knowledge of Spanish (oral, written and passive), knowledge of the history of Costa Rica and its values, promise to reside within the national territory on a permanent basis, oath of loyalty, not being a citizen of a country with which Costa Rica is at war, no conviction in Costa Rica or abroad for any of the listed offences (including drug smuggling). n.a.

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174 chapter 5

Extension to other relatives Reacquisition Restricted citizenship rights Citizenship of a specific country

Cultural affinity Presumed citizens Very long residence Refugees

A15

A19 A20 A21 A22

A18

A16 A17

A13 A14

A12

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension

A09 A10 A11

No provision No provision No provision No provision

Const 14(2)

No provision No provision

No provision

No provision Const 17, cos 4

No provision

No provision No provision No provision

n.a. n.a. n.a. n.a.

Naturalization (discretionary)

n.a. n.a.

n.a.

n.a. Naturalization (discretionary)

n.a.

n.a. n.a. n.a.

Person is a citizen by birth of Spain, a Central American country, or an Iberoamerican country, and has been resident in Costa Rica for 5 years. Other conditions: see A06. n.a. n.a. n.a. n.a.

n.a. n.a.

n.a. Person is a minor who is resident in Costa Rica and whose parent acquires citizenship. Acquisition can be revoked by the person after reaching the age of majority (until the age of 25). n.a.

n.a.

n.a. n.a. n.a.

Costa Rica

175

short description

Stateless or unclear citizenship Special achievements

Public service Financial assets Acquisition of citizenship for other reasons

Costa Rica

short description

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country

idmode

A23

A25 A26 A27

modesloss

idmode

L01

L02 L03 L04

A24

Costa Rica

modesacq

(Table continued)

No provision No provision No provision

No provision

Articles

No provision No provision No provision

Const 14(6)

No provision

Articles

n.a. n.a. n.a.

n.a.

procedure

Naturalization (discretionary) n.a. n.a. n.a.

n.a.

procedure

n.a. n.a. n.a.

n.a.

conditions

n.a. n.a. n.a.

Person is granted honorary citizenship.

n.a.

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176 chapter 5

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship Loss for other reasons

L10

L15

L13b L14

L13a

L12

L11

L07 L08 L09

L06

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition

L05

No provision

No provision No provision

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

No provision

No provision

n.a. n.a. Nullification

n.a.

No provision

No provision No provision cos 18

n.a.

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a. n.a. Person acquired citizenship by naturalization based on fraud. Loss can result in statelessness. n.a.

n.a.

n.a.

Costa Rica

177

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Cuba The island of Cuba was discovered by Columbus in 1492 and although nominally subject to the viceroyalty of New Spain, a more direct influence was exerted by the audiencia of Santo Domingo in what is now the Dominican Republic.1 While Cuba became independent from Spain on 10 December 1898, it was subsequently administered by the United States and full independence was only gained on 20 May 1902, at which time the first Cuban Constitution entered into force.2 Cuban independence thus came about very late in comparison with other Spanish colonies, yet this was not for want of trying by some minority groups.3 Having remained a Spanish colony turned out to be economically very beneficial to Cuba and in the nineteenth century the island ‘lived through a period of economic prosperity unknown in the Hispanoamerican republics’.4 The subject of Cuban citizenship law is dealt with in Chapter 2 of the 1976 Constitution and Decree no. 358 of 1944 (Reglamento de ciudadanía).5 Title II of this Decree has been repealed by the 1976 Migration Law.6 A separate Nationality Act (Ley de Ciudadanía) does not exist in Cuba, which has been lamented by Cuban legal doctrine.7 The Constitution provides that Cubans can never be deprived of their nationality, yet they are free to give it up themselves (Article 32). Dual citizenship is not accepted, however, which means that Cubans will lose their nationality upon acquiring another one (idem Article 32 of the Constitution). Vega Castro explains that this provision has led to different interpretations. Where it is interpreted by some as entailing the automatic loss of Cuban nationality 1 R.A. Hudson, Cuba, a country study, 4th ed. (Washington, dc: Federal Research Division of the Library of Congress, 2002), 12. See also the chapter on the dr. 2 Articles 4–8 of this Constitution were concerned with nationality. 3 An attempt at gaining independence had been made in 1809 but failed for several reasons, including the growth of the sugar industry and the wealth that went with it; the fear of slave rebellion (slavery in Cuba was only abolished in 1886); and increasing support for annexation by the United States. See R.A. Hudson, Cuba, 24. 4 See José Antonio Piqueras in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 357. 5 Entry into force on 24 February 1976 and last amended on 26 June 2002. See http://pdba .georgetown.edu/constitutions/cuba/cuba.html. The 1944 Decree is not available online but a copy of its publication in the ‘Gaceta Oficial’ is on file with the author. It entered into force on 3 March 1944. 6 Entry into force on 20 September 1976. See http://www.gacetaoficial.cu/html/leymigracion .html. 7 Vega Castro.

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179

when another nationality is acquired, others refer to the ‘except for causes legally established’ clause.8 The latter interpretation would imply that loss is not automatic, since loss only takes effect by a withdrawal procedure initiated by the competent authorities. Prieto Valdés convincingly argues that at least since the mid-1960s Cuba has chosen the withdrawal procedure over automatic loss of nationality.9 An amendment of Spanish nationality law in 2002 made many Cubans eligible for dual nationality.10 In Vega Castro’s view, however, the fact that a considerable number of Cubans now hold dual citizenship which is not recognized by Cuba constitutes a contradiction to the ‘spirit of the Cuban Constitution’.11 At the same time, there seems to be support for dual citizenship in the literature, with Fernández Pérez asking ‘What distinguishes Cuba from the rest of Latin America? Do Cuban-Spanish nationals not deserve recognition of their dual citizenship as do dual citizens from the Dominican Republic or Costa Rica?’12 Repeating what was already mentioned in Chapter 2 with regard to Puerto Rico, the Spanish territories of Cuba and Puerto Rico, although Spanish colonies until 1898, had a separate status compared to mainland Spain, where Spanish nationality law was concerned. Persons born to a Spanish father or mother by birth (de origen) who was born in Spain (nacido en España) currently do not have an option right under Article 20(1)(b) of the Spanish Civil Code if this parent was born in Puerto Rico or Cuba before 1898, since a distinction is made between territorio nacional (mainland Spain) and territorio español. The latter included the overseas territories, but birth there was not regarded as ‘born in Spain’ for the purposes of Spanish nationality law. Cuban nationality law does not refer to statelessness. However, some authors mention that other legal texts, such as the Civil Code (cc), do sometimes refer to the phenomenon. Article 11 cc, for example, mentions that stateless persons who are permanent residents in Cuba have the same civil rights and duties as Cuban citizens.13 8 9

10 11 12 13

Article 32: ‘Los cubanos no podrán ser privados de su ciudadanía, salvo por causas legalmente establecidas’. ‘[D]esde mediados de los años 60 del pasado siglo…en la práctica política cubana no se han producido perdidas automáticas, sino que siempre han requerido la expresión formal de la decisión estatal’. Prieto Valdés, 14. See additionally Vonk (at 322), where it is remarked that the Spanish Historical Memory Act of 2007 is referred to in Cuba as the ‘law for grandchildren’. Vega Castro. Fernández Pérez. Prieto Valdés et.al. Article 11 cc reads: ‘Los ciudadanos extranjeros y las personas sin ciudadanía que sean residentes permanentes en Cuba tienen los mismos derechos y deberes

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Bibliography Conangla Fontanilles, José Ciudadanía y extranjería. Habana: Imp. E. López Salas, 1924. Dávalos Fernández, Rodolfo. Derecho Internacional Privado Parte General. Habana: Editorial Félix Varela, 2007. Fernández Pérez, Mario Antonio. Cubanos con doble ciudadanía? 2007–2008. http:// www.cubaencuentro.com/var/cubaencuentro.com/storage/original/application/ 7160b23f2b158fd86a6603d2c5e814d9.pdf. Gay-Calbó, Enrique. Ciudadanía y extranjerí. Publicación de la Revista derecho internacional, junio de 1937. La Habana: Carasa, 1937. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 96–106. Peraza Chapeau, José. “La Ciudadanía Cubana.” Contrapunto 7, no. 2 (1996). Peraza Chapeau, José. La Ciudadanía Cubana. edited by Lissette Pérez Hernández and Martha Prieto Valdés, Temas de Derecho Constitucional cubano. Habana: Editorial Félix Varela, 2000. Prieto Valdés, Martha “La ciudadaniá: presupuesto del disfrute de los derechos. Pasado, presente y necesidades en y parar Cuba.” Revista Anales de la Academia de Ciencias de Cuba 3, no. 1 (2013): 1–17. http://www.revistaccuba.cu/index.php/acc/article/view/144. Prieto Valdés, Martha, Lissette Pérez Hernández and Gisselle Sarracino Rivero. 1995. “A propósito de la ciudadanía en Cuba.” http://areitodigital.net/ciudadania% 20en%20cuba.htm. Vega Castro, José Antonio. “Una Mirada a la nacionalidad y ciudadanía en Cuba.” 2011. http://www.monografias.com/trabajos83/mirada-nacionalidad-ciudadania-cuba/ mirada-nacionalidad-ciudadania-cuba.shtml. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012. civiles que los ciudadanos cubanos, salvo disposición legal en contrario’. See for an interesting analysis of Cubans who have been recognized stateless in the European Union, Bianchini, Katia. “On the Protection of Stateless Persons in Germany,” Tilburg Law Review 19, no. 1–2.

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

Socialization based acquisition

A02b

A07

A06

A05

A03a A03b A04

Birth in country (2nd generation)

A02a

A01b

Cuba

modesacq

No provision

Const 30, cub 8(a)

No provision

No provision No provision No provision

No provision

Const 29(a)

Const 29(b)

No provision

articles

Naturalization (entitlement) n.a.

n.a.

n.a. n.a. n.a.

n.a.

Automatic

Automatic

n.a.

procedure

Person has been resident in Cuba for 5 years and knows the Spanish language. n.a.

n.a.

n.a. n.a. n.a.

Person is born abroad to a citizen who carries out an official mission in the service of Cuba. Person is born in Cuba. Unless parents are foreign diplomats or employees of an international organization. n.a.

n.a.

conditions

Cuba

181

short description

Spousal transfer

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension

Extension to other relatives Reacquisition

idmode

A08

A09 A10 A11 A12

A15

A16

A13 A14

Cuba

modesacq

(Table continued)

Const 33, cub 35

No provision

No provision Const 30, cub 8(g)

No provision No provision No provision No provision

Const 30, cub 8(b)

articles

Declaration

n.a. Naturalization (entitlement) n.a.

n.a. n.a. n.a. n.a.

Naturalization (entitlement)

procedure

Person lost citizenship due to acquisition of another citizenship or holding dual citizenship and establishes residence in Cuba. Other conditions: renunciation of citizenship of another country.

n.a. Person is a minor born abroad whose parent acquires citizenship by naturalization. n.a.

Person is the spouse of a citizen and the union either resulted in offspring or the person has been resident in Cuba for 2 years uninterrupted since the marriage was celebrated. Other conditions: renunciation of citizenship of another country. n.a. n.a. n.a. n.a.

conditions

182 chapter 5

Public service Financial assets Acquisition of citizenship for other reasons

A25 A26 A27

A24

A19 A20 A21 A22 A23

A18

Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

A17

No provision No provision No provision

Const 29(d); Const 30(b)

No provision No provision No provision No provision No provision

No provision

No provision

n.a. n.a. n.a.

Naturalization (discretionary); Naturalization (discretionary)

n.a. n.a. n.a. n.a. n.a.

n.a.

n.a.

Person has shown exceptional merit in the Cuban struggle for liberation. Pursuant to this Article the person acquires the status of citizen by birth; Person has contributed to the armed struggle against ‘the tyranny ended on 1 January 1959’. n.a. n.a. n.a.

n.a. n.a. n.a. n.a. n.a.

n.a.

n.a.

Cuba

183

short description

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent

idmode

L01

L11

L07 L08 L09 L10

L06

L05

L02 L03 L04

Cuba

modesloss

(Table continued)

No provision

n.a.

n.a. n.a. n.a. Withdrawal

n.a.

No provision

No provision No provision No provision Const 32, cub 33, 34

Withdrawal

n.a. n.a. n.a.

Declaration

procedure

Const 32, cub 33, 34

No provision No provision No provision

Const 32

articles

n.a. n.a. n.a. Person acquired citizenship by naturalization and fails to renounce citizenship of another country. n.a.

n.a.

Person acquires citizenship of another country.

No other conditions. Loss can result in statelessness. n.a. n.a. n.a.

conditions

184 chapter 5

L15

L13b L14

L13a

L12

Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons No provision

No provision No provision

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a. n.a.

n.a.

n.a.

Cuba

185

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Dominica Dominica’s rather distinct flora had a major impact on the country’s history: [Its] steep mountains and deep valleys provided the early Carib Indians with a natural fortress against European colonizers, making Dominica one of the last islands to be fully colonized. These same features later provided a safe haven for escaped slaves.1 The British obtained Dominica from France by conquest in 1759, meaning that is was incorporated relatively late in comparison with Britain’s other colonies in the region. The island has been a country within the Commonwealth since gaining independence on 3 November 1978.2 Dominica not only follows the usual set-up of nationality legislation in the Western Hemisphere by dealing with nationality law in the 1978 Constitution (Chapter 7) and a separate 1978 Citizenship Act;3 it also closely resembles other Engish-speaking Caribbean countries in terms of substance. Those similarities will become readily apparent when comparing their respective country tables and will therefore not be discussed separately here. Some differences can nonetheless be discerned. Where it was seen in the case of A&B that modes A08 and A18 follow an entitlement and a discretionary procedure respectively, the situation in Dominica is the exact reverse. On a technical note, it is observed that minors adopted by a citizen only acquire citizenship automatically if the adopting parent was born in Dominica. This follows from the reference to Article 98 of the Constitution in Article 100(1)c. dom 5 corresponds to Article 100(1)c but does not refer to Article 98, suggesting that the parent’s birth in Dominica is not a requirement. dom 5, moreover, also suggests that the procedure is automatic; Article 100(1)c of the Constitution by contrast requires an oath of allegiance, meaning that the procedure cannot be automatic. This is not the only example of a case where the practice in the American Hemisphere of having a separate Citizenship Act to further clarify the constitutional provisions can actually create rather than solve problems if this is not done consistently. Another example is mode A16, where dom 12 suggests a 1 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, 263. 2 Fransman, 915–919. 3 Both the Constitution and the Commonwealth of Dominica Citizenship Act 1978 (Act No 26 of 1978) entered into force on 3 November 1978. See http://pdba.georgetown.edu/ Constitutions/Dominica/constitution.pdf and http://www.dominica.gov.dm/laws/chapters/ chap1-10.pdf.

Dominica

187

more lenient way of reacquiring citizenship than the constitutional provision.4 A final example concerns A18. Here an apparent contradiction seems to exist between the Constitution and the Citizenship Act. In any case, it is somewhat illogical that both procedures – discretionary and by entitlement – exist side by side. Dominica introduced ‘economic citizenship’ in 1993, thereby following in the footsteps of St Kitts which has had this ground for acquisition since 1984. Economic citizenship is covered by mode A26 and the legal ground is dom 8(2)c, which allows the Minister to waive the residence requirement under special circumstances. Foreigners who invest a sufficient amount of money in Dominica can therefore acquire citizenship without having resided in the country.5 Although this admission into Dominican citizenship subsequently qualifies them for certain rights of membership, suffrage and taxation remain based on residence. Jelena Dzankic usefully summarizes the effects of ‘investor citizenship’ in Dominica as well as St Kitts in the following manner: [I]n both cases…citizenship is formally conferred upon the investor, who may use those benefits of membership that are not dependent on residence (e.g., free travel). Benefits and duties of citizenship that are dependent on the individual’s participation in the polity and the identification with it still require the establishment of stronger ties with the polity by having it become the individual’s focus of life or business activity.6 Loss of Dominican nationality can in most cases result in statelessness, with the exception of renunciation (L01) and convictions for ‘other offences’ (L08). In the former case, the renunciation becomes invalid if another nationality has not been acquired within twelve months.7 Several other English-speaking Caribbean countries have a similar rule, although they usually invalidate the renunciation after six months.8 It was seen that this is for instance the case in the Bahamas. There it was also explained that States which have introduced 4 For the sake of clarity, dom 12 is not explicitly referred to in the table. 5 Details can be found on the government’s website at http://dominica.gov.dm/services/ how-do-i-apply-for-economic-citizenship-of-the-commonwealth-of-dominica# requirements. 6 J. Dzankic, “The pros and cons of ius pecuniae: investor citizenship in comparative perspective,” rscas Working Paper 2012/14 (2012), 11. 7 It is noted that the person who loses citizenship under this mode shall not be deprived of the right to reside in Dominica, be employed there, or own land or any right to land there. 8 The six-month term was also found under British law at the time the Dominica became independent. See Article 2(1) of the bna 1964, reproduced in Fransman 1563.

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this protection mechanism go beyond their obligations under international law. The rule in place in Dominica is nevertheless strongly supported from the perspective of protection against statelessness.9 Elsewhere the question has been raised whether the exhaustive list of grounds for loss laid down in the 1961 Convention permits the loss of citizenship for citizens who commit (criminal) offences other than those already listed in any of the other modes of loss.10 As this question can only be conclusively answered by the unhcr Guidelines on Articles 5–9 of the Convention that will be published in 2015,11 it is suggested here that Dominica does not violate international law by having implemented this ground for loss because it does not allow mode L08 to render a person stateless (in contrast to, for example, Belize). Modes of loss L04 and L07, finally, are problematic from the perspective of statelessness, whereas L09 is perfectly in line with international standards. Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 107. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 915–919. 9 10 11

O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness,” 67. Ibid., 82. This information is based on an email from Mark Manly of unhcr dated 8 April 2014 (on file with the author). It is expected that the Guidelines will closely follow the Conclusions from an expert meeting held in 2013 inTunisia and which are available at http://www .refworld.org/docid/533a754b4.html.

A06

A05

A03a A03b A04

A02b

A02a

Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation)

A01a

A01b

short description

idmode

modesacq Dominica

n.a.

n.a. n.a. n.a.

Person is born in Dominica. Unless born to a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

Person is born abroad to a citizen who was born in Dominica.

n.a.

conditions

Naturalization Person has been resident in Dominica for 12 months immediately prior to (discretionary) the application, and was either resident in Dominica, in the service of the government, or had partly such residence and partly such service for 7 years prior to the application. Other conditions: good character, full capacity,

n.a.

No provision

dom 8, 9

n.a. n.a. n.a.

n.a.

Automatic

Automatic

n.a.

procedure

No provision No provision No provision

No provision

Const 98

Const 99

No provision

articles

Dominica

189

Filial transfer Adoption

Transfer to other relatives

A11

n.a.

procedure

adequate knowledge of English and of the duties of a citizen, intent to reside in Dominica or to continue government service, and oath of allegiance. Minister is explicitly allowed to waive certain requirements. n.a.

conditions

Registration Person is the spouse of a citizen and has been resident in Dominica, or (discretionary) in the service of the government, or had partly such residence and partly such service, for 3 years immediately prior to the application. Minister is explicitly allowed to waive certain requirements. Other conditions: good character, full capacity, adequate knowledge of English and of the duties of a citizen, intent to reside in Dominica or to continue government service, and oath of allegiance. No provision n.a. n.a. Person is a minor who is adopted by a citizen born in Dominica; Const 100(1)c, Automatic; Person is a minor who is adopted by a citizen but does not acquire Registration dom 5; dom 6(1)b, 7 (discretionary) citizenship automatically [under Const 100(1)c in conjunction with dom 5]. Other conditions: 3 years’ residence in Dominica and oath of loyalty. Minister is explicitly allowed to waive certain requirements. No provision n.a. n.a.

A09 A10

A08

Socialization based No provision acquisition Spousal transfer dom 6(1)a, 7

A07

articles

short description

idmode

modesacq Dominica

(Table continued)

190 chapter 5

Restricted citizenship rights Citizenship of a specific country

Cultural affinity No provision Presumed citizens No provision Very long residence No provision

A19 A20 A21

A18

n.a. n.a. n.a.

n.a.

n.a.

n.a. n.a. n.a.

Const 100(1)a; Registration dom 6(1)c, 7 (entitlement); Registration (discretionary)

No provision

Const 100(1)b Registration (entitlement)

No provision No provision No provision

A17

A16

A13 A14 A15

No provision

Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition

A12

Person is a Commonwealth citizen and has been resident in Dominica for 7 years immediately prior to the application. Other conditions: oath of loyalty; Person is a Commonwealth citizen and has been resident in Dominica, or in the service of the government, or had partly such residence and partly such service, for 5 years immediately prior to the application. Minister is explicitly allowed to waive certain requirements. Other conditions: good character, full capacity, adequate knowledge of English and of the duties of a citizen, intent to reside in Dominica or to continue government service, and oath of allegiance. n.a. n.a. n.a.

Person is a former citizen who was born in Dominica and had to renounce citizenship in order to acquire or retain citizenship of another country. Other conditions: oath of loyalty. n.a.

n.a. n.a. n.a.

n.a.

Dominica

191

Refugees Stateless or unclear citizenship Special achievements Public service Financial assets

Acquisition of citizenship for other reasons

A22 A23

A27

short description

Renunciation of citizenship

idmode

L01

modesloss Dominica

A25 A26

A24

short description

idmode

modesacq Dominica

(Table continued)

Const 101(c), dom 11, 13

articles

No provision

No provision dom 8(2)c

No provision

No provision No provision

articles

Declaration

procedure

n.a. Naturalization (discretionary) n.a.

n.a.

n.a. n.a.

procedure

Person is of full capacity and is or will become a citizen of another country. Renunciation only takes effect after registration by the authorities. If citizenship of another country is not acquired within 12 months from the date of registration, the renunciation will become invalid.

conditions

n.a. Person is someone whose acquisition of citizenship would be in the special economic interest of Dominica. Other conditions: oath of loyalty. n.a.

n.a.

n.a. n.a.

conditions

192 chapter 5

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

Other offences

Fraudulent acquisition

L05

L08

L09

L07

L06

L04

Residence abroad Service in foreign army Other service for foreign country

L02 L03

Const 101(a), dom 10(1)–10(2)

Withdrawal

Const 101(b), Withdrawal dom 10(1), 10(3)c, 10(5)b

Const 101(b), Withdrawal dom 10(1), 10(3)a, 10(3)d

n.a.

No provision

Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness.

Person acquired citizenship by registration or naturalization and has committed a voluntary act which is incompatible with the duty of loyalty towards Dominica, or has been disloyal (in act or speech) towards the country. Loss can result in statelessness. Person acquired citizenship by registration or naturalization and has within 5 years of acquisition been sentenced in any country to imprisonment for at least 12 months. Loss cannot result in statelessness.

n.a.

Person acquired citizenship by registration or naturalization and has in any way assisted the enemy in a war in which Dominica was engaged. Loss can result in statelessness. n.a.

Withdrawal

n.a.

n.a. n.a.

n.a. n.a.

Const 101(b), dom 10(1), 10(3)b No provision

No provision No provision

Dominica

193

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship Loss for other reasons

L10

L15

L13b L14

L13a

L12

L11

short description

idmode

modesloss Dominica

(Table continued)

No provision

No provision No provision

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

No provision

No provision

procedure

articles

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

conditions

194 chapter 5

Dominican Republic (dr)

195

Dominican Republic (dr) The island of Hispaniola, of which the Dominican Republic currently occupies the eastern part, was the first New World colony settled by Spain in 1492. While Christopher Columbus and subsequently his son Diego were the first governors of the island, Diego’s ambition quickly aroused the Crown’s suspicion. In 1511 Spain therefore established an audiencia in Santo Domingo, ‘a new political institution intended to check the power of the governor’.1 After being occupied by Haiti (1822–1844), the traumatic effects of which are still felt today, the country became independent on 27 February 1844.2 The first provisions on Dominican nationality are found in the Constitution of 18 November 1844.3 In the Dominican Republic, not only the recent 2010 Constitution (Chapter 5, Section 1) and the 1948 Nationality Act are important for our purposes,4 but for reasons that will be explained the 2004 General Law on Migration is also relevant.5 Just like Colombia, the dr can be considered more a ius sanguinis than a ius soli country, since the law starts off by saying that Dominican nationals are those who are born to a Dominican national.6 Persons born in the country to non-citizen parents also acquire Dominican nationality automatically, but not if their parents are illegal residents or ‘in transit’. The use of the ‘in transit’ category for discriminatory purposes has become notorious as we shall see. Since this chapter will focus on the problem of statelessness in the dr, only a few brief remarks will be made on the general provisions. It follows from Article 7 of the 1948 Act that naturalization is discretionary. A08 is striking in that foreign men are discriminated against when it comes to facilitated access 1 R.L. Worden, Dominican Republic and Haiti, country studies, 3rd ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 2001), 16. 2 The dr was annexed again by Spain, however, between 1861–1865. 3 Hecker, 108. 4 The Constitution entered into force on 26 January 2010 and is available at http://pdba .georgetown.edu/Constitutions/DomRep/vigente.html. The Nationality Act entered into force on 16 April 1948, was last amended by law no. 46 of 18 November 1966, and is available at http://www.migracion.gob.do/site/leyes/Ley_1683_sobre_naturalizacion.pdf. 5 The General Law on Migration entered into force on 15 August 2004 and can be consulted at http://mip.gob.do/Portals/0/docs/Marco_Legal_Transparencia/2013Actualizacion/Ley %20No.285-04%20Migraci%C3%B3n.pdf. 6 This in contrast to, for instance, Costa Rica and Peru, where birth on the territory is mentioned first as the primary ground for acquisition. Moreover, by not referring to the concept of ‘nacionalidad por nacimiento’, the dr departs from the tradition in the Spanishspeaking countries of making a clear-cut distinction between citizens by birth and those that are not.

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to nationality as a result of marrying a dr national. While six months’ residence is required in their case, foreign women who marry a dr national are exempt from any residence requirement whatsoever. It will be seen that Haiti has a similar provision, and observations on the nationality position of married women will be made there. As for the loss provisions under Dominican law, they only apply to naturalized citizens. It was already stated in Chapter 1 that, with regard to the Western Hemisphere, one of the issues attracting most attention in the realm of nationality law is the systematic denial of birth registration and documentation to children born to Haitian migrant workers who in many cases have lived in the dr for a long time.7 The animosity between the Dominican Republic and Haiti has a long history. Following the successful battle for independence from France, Haiti invaded the Dominican Republic in 1822 in order to end slavery there. It would rule the eastern part of the island for the next twenty-two years.8 The period under Haitian occupation still lives on strongly in the Dominican popular imagination and affects feelings towards current Haitian migrants in the country. Migration from Haiti started in the early 1900s, when cheap labour migrants were recruited to work in the sugar industry.9 However, the Dominican contempt for Haitians remained and culminated in the 1937 massacre of thousands of Haitians living in the border provinces.10 This massacre was committed under the dictatorship of Rafael Leonidas Trujillo (1930– 1961), whose regime ‘fostered a national identity and institutional racism that favoured whites over blacks’,11 and ‘built upon the country’s antipathy to Haiti to help articulate a nationalist ideology appealing to traditional Hispanic and Roman catholic values’.12 In Mario Vargas Llosa’s fictional account of his life, Trujillo states that the massacre of the Haitians was the greatest feat under his government.13 7 8 9

10 11 12 13

L. van Waas, “The children of irregular migrants: a stateless generation?”, 451. Aber and Small, 80. At the same time, however, the dr was ‘advocating openly for European colonists’ and preferred immigrants of the Caucasian race. T. Martínez-Vergne, Nation & Citizen in the Dominican Republic, 1880–1916 (Chapel Hill: University of North Carolina Press, 2005), 85. The exact number of Haitians killed is unclear. An estimate of 5,000 to 12,000 is found in R.L. Worden, Dominican Republic and Haiti, 40. Aber and Small, 80. R.L. Worden, Dominican Republic and Haiti, 40. M. Vargas Llosa, The Feast of the Goat, trans. E. Grossman (New York: Picador, 2000), 164. In the novel, Trujillo explains that it was done ‘to keep the blacks from colonizing us again. There were tens of thousands of them, and they were everywhere. If I hadn’t, the Dominican Republic would not exist today. The entire island would be Haiti, as it was in

Dominican Republic (dr)

197

The lack of a Dominican birth certificate for individuals of Haitian descent means that they cannot obtain a national identity card (cédula de identidad y electoral), which is necessary to enjoy political, economic, and civil rights under Dominican law.14 It is important for our purposes that unregistered children cannot prove where they were born nor to whom, and therefore they are denied Dominican citizenship. This denial of citizenship is estimated to have resulted in hundreds of thousands of stateless people who were born in the dr and have no ties to Haiti – their parents’ country of origin.15 On 8 September 2005 the Inter-American Court of Human Rights found that this Dominican practice violated a number of Articles from the American Convention on Human Rights (including Article 20 dealing with nationality) in the case of Dilcia Yean and Violeta Bosico v. Dominican Republic.16 This decision was subsequently met with a great deal of hostility by the dr.17 In October 2005 the Senate issued a resolution rejecting the judgment; and on 14 December of that year the Constitutional Court indirectly responded to the InterAmerican Court’s ruling by confirming the constitutionality of the 2004 General Law on Migration, which had brought all ‘non-residents’ (also covering undocumented Haitian migrant workers) within the ‘in transit’ category. Children born to parents who were in transit in the dr were excluded from ius soli acquisition at birth. The Constitutional Court’s ruling has been severely criticized: Despite lip-service to notions of non-discrimination based upon such classifications as national origin, the Court never addresses the legitimate, and probably correct, contention that the law was premised on nothing but animus and prejudice to a certain class of nationals currently residing in the Dominican Republic. To ask these deeper questions

14

15 16 17

1840. The handful of white survivors would be serving the blacks’. In this connection, a curious development is that Vargas Llosa’s son Gonzalo – currently unhcr’s Chief of Mission in Santo Domingo – was declared ‘persona non grata’ by some Domincan organizations for criticizing the Dominican citizenship policy in respect of Haitians. The Feast of the Goat, in turn, was declared to offend the dr and burnt in public. See http://www .oas.org/en/iachr/media_center/PReleases/2013/097A.asp. For the denial of education to stateless children in the dr, see in particular Human Rights Institute Georgetown University, Left Behind: How Statelessness in the Dominican Republic Limits Children’s Access to Education (2014). Kosinski, 383. Yean and Bosico Children v. Dominican Republic, Case 12. 189, 2005 Inter-Am. C.H.R. Available at http://www.unhcr.org/refworld/docid/44e497d94.html. Aber and Small, 86.

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would make it more and more difficult to find the law constitutional, and thus the decision presents nothing but a political judgment, passing the buck, so to speak. Its superficiality is manifest with the turn of every word.18 Importantly, the dr confirmed the practice under the 2004 General Law on Migration at the constitutional level in 2010, by providing in Article 18 of the Constitution that Dominican citizenship is enjoyed by ‘persons born on national territory, with the exception of the sons and daughters of foreign members of diplomatic and consular delegations, and foreigners who find themselves in transit or reside illegally on Dominican territory’.19 ‘Illegal residence’ and ‘in transit’ may be regarded as synonyms, since persons who do not meet the requirements for legal residence are considered to be in transit regardless of the amount of time spent in the dr.20 This constitutional amendment is currently being challenged by Mr. Emildo Bueno Oguis – born in the dr of Haitian parents – before the Inter-American Commission on Human Rights.21 In fact, the General Law on Migration not only denies ius soli citizenship to children born to undocumented parents but also applies retroactively to Dominicans of Haitian descent who once enjoyed the full rights pertinent to Dominican citizenship.22 When Mr. Bueno requested a certified copy of his birth certificate in 2007, he was denied this request based on the fact that both of his parents were ‘non-residents’ at the time of his birth in 1975.23 This policy effectively means that Dominicans of Haitian descent who were born in the dr at a time when they still automatically acquired Dominican nationality iure soli were retroactively rendered stateless through the revocation of their citizenship.24 Overall, the case of the Dominican 18

P.J. Glen, “Wong Kim Ark and Sentencia que Declara Constitucional La Ley General de Migración 285-04 in Comparative Perspective: Constitutional Interpretation, Jus Soli Principles, and Political Morality,” 89. 19 Emphasis added. 20 Cherednichenko, 11–12. 21 http://www.opensocietyfoundations.org/sites/default/files/Petition%20Summary -20100601.pdf. 22 Open Society Foundations, 9. 23 This decision was based on two internal memoranda issued to assure the implementation of the General Law on Migration. 24 See also the Constitutional Court’s judgment of 23 September 2013 (Sentencia 168/13), in which it was ruled that the definition of ‘in transit’ retroactively applies to all persons born in the dr after 1929. See http://tribunalconstitucional.gob.do/sites/default/files/ documentos/Sentencia%20TC%200168-13%20-%20C.pdf, http://www.refintl.org/blog/ huge-step-backwards-dominican-republic and http://www.unhcr.org/524c0c929.html.

Dominican Republic (dr)

199

Republic is also a clear demonstration of the problem of ‘racial discrimination in access to nationality’ in certain countries,25 as prohibited by Article 5 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.26 The dual nationality treaty with Spain and its additional protocol entered into force on 16 December 1968 and 1 February 2002, respectively.27 Bibliography Aber, Shaina and Mary Small. “Citizen or Subordinate: Permutations of Belonging in the United States and the Dominican Republic.” Journal on Migration and Human Security 1, no. 13 (2013): 76–96. Arias, Luis. La nacionalidad, su interpretación y su aplicación en República Dominicana. Santo Domingo: L.A. Núñez, 2007. [Chapter 4 contains a comprehensive analysis of Dominican nationality law; very few bibliographical references.] Castillo Pantaleón, Juan Miguel. La nacionalidad dominicana. Santo Domingo: Editora Nacional, 2012. Cherednichenko, Valeriia. “Revocation of nationality from Dominicans of Haitian descent in light of the Bueno v. Dominican Republic case.” Master’s Thesis Tilburg University, 2012. http://arno.uvt.nl/show.cgi?fid=126923. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 108–115. Kosinski, Stacie. “State of Uncertainty: Citizenship, Statelessness, and Discrimination in the Dominican Republic.” Boston College International & Comparative law Review 32 (2009): 377–398. Landolfi Rodríguez, Ciriaco. Apuntes para una teoría de la nacionalidad dominicana. República Dominicana: Instituto Panamericano de Geografía e Historia, 2011. Open Society Foundations. “Dominicans of Haitian Descent and the Compromised Right to Nationality: Report presented to the Inter-American Commission on Human Rights on the Occassion of its 140th Session.” 2010. http://www.opensociety foundations.org/sites/default/files/Dominican-Republic-Nationality-Report -ENG-20110805.pdf. 25

26 27

See for a global overview of this problem J.A. Goldston, “Holes in the Rights Framework: Racial Discrimination, Citizenship, and the Rights of Noncitizens,” Ethics & International Affairs 20, no. 3 (2006). See also D.S. Weissbrodt, “The Approach of the Committee on the Elimination of Racial Discrimination to Interpreting and Applying International Humanitarian Law,” Minn. J. Int’l L. 19, no. 2 (2010). New York, 7 March 1966 (unts 660, 195). Vonk, 284, 296.

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Rosario, Juan Manuel. La inmigración y la nacionalidad dominicana. Santo Domingo: Ediciones Jurídicas Trajano Potentini, 2007. [Discusses the interaction between the Nationality Act and the Migration Law (Ley 285–04 de Migración); with considerable attention for statelessness from page 77.] Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012.

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth)

A02b

A03a A03b A04 A05

Birth in country (2nd generation)

A02a

A01b

Dominican Republic

modesacq

No provision No provision No provision No provision

No provision

Const 18(3)

Const 18(1), 18(4), 18(6); dor 26, Párrafo I

Const 18(1)

articles

n.a. n.a. n.a. n.a.

n.a.

n.a. n.a. n.a. n.a.

Person is born abroad to a citizen; Person is born abroad to a citizen and acquires citizenship of the country of birth. In that case, Dominican citizenship is granted provisionally by naturalization. Person can definitively opt for Dominican citizenship, or renounce it, upon reaching the age of majority. No further requirements and dual citizenship is accepted. Person is born in the dr. Unless born to foreign diplomats, foreigners ‘in transit’, and those residing illegally in the country. n.a.

Automatic; Naturalization (entitlement)

Automatic

Person is born in the dr to a citizen.

conditions

Automatic

procedure

Dominican Republic (dr)

201

Dominican Republic

short description

Ordinary naturalization

Socialization based acquisition Spousal transfer

Filial transfer Adoption

Transfer to other relatives Transfer from former citizen

modesacq

idmode

A06

A07

A08

A09 A10

A11 A12

(Table continued)

No provision No provision

No provision dor 26, Párrafo II

Const 18(5), dor 1d, 1d Párrafo II

No provision

Const 18(7), dor 1, 5, 7

articles

Person is the male spouse of a female citizen and has been resident in the country for at least 6 months uninterrupted (no requirement of common household during that period). The female spouse of a male citizen is exempt from the residence requirement. n.a. Person is a minor who is adopted by a citizen. Person can definitively opt for Dominican citizenship within 2 years after reaching the age of majority. No further requirements. n.a. n.a.

Naturalization (discretionary)

n.a. n.a.

n.a. Naturalization (discretionary)

n.a.

Person has been resident in the dr for at least 2 years uninterrupted. Age at which naturalization can be requested can be lowered from 18 to 16 if the person is married or authorized by his/her parents/legal representative. n.a.

conditions

Naturalization (discretionary)

procedure

202 chapter 5

Filial extension

Extension to other relatives Reacquisition Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence

A14

A15 A16 A17 A18

A19 A20 A21

Spousal extension

A13

No provision No provision No provision

No provision No provision No provision No provision

dor 4; dor 3, Párrafo I

dor 3

n.a. n.a. n.a.

n.a. n.a. n.a. n.a.

Automatic; Naturalization (discretionary)

Naturalization (discretionary)

n.a. n.a. n.a.

Person is the female spouse of a man who acquires citizenship by naturalization. No further requirements apart from presence in the country at the time of the application. Person is the minor, unmarried and legitimate or recognized child of a male parent who acquires citizenship by naturalization. Citizenship can be renounced after reaching the age of majority (time limit: 1 year). The provision applies to children of a female parent who acquires citizenship by naturalization only if the father is unknown or if the mother is their legal guardian; Person is the adult child of a father who acquires citizenship by naturalization, has been resident in the dr for 1 year and submits his/her request together with that of the mother. n.a. n.a. n.a. n.a.

Dominican Republic (dr)

203

Dominican Republic

short description

Refugees Stateless or unclear citizenship Special achievements

Public service

Financial assets

Acquisition of citizenship for other reasons

modesacq

idmode

A22 A23

A24

A25

A26

A27

(Table continued)

No provision

Const 18(7), dor 1c

Const 18(7), dor 2

dor 18–20

No provision No provision

articles

n.a.

Naturalization (discretionary)

Naturalization (discretionary)

Naturalization (discretionary)

n.a. n.a.

procedure

Person is, with exemption from all ordinary naturalization requirements, granted citizenship by the President for having rendered eminent services to the country or to humanity in general. Maximum of 5 persons per year to which this form of citizenship can be granted. Person has been resident in the dr for 6 months and rendered technical or special services to the country’s armed forces. No further requirements. Person has been resident in the dr for at least 6 months uninterrupted, and has founded urban or rural industries or owns real estate in the country. No residence requirement if person owns more than 30 hectares of land in the country, but permission must be granted to establish domicile in the country. n.a.

n.a. n.a.

conditions

204 chapter 5

short description

Renunciation of citizenship Residence abroad

idmode

L01

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

L05

L07

L06

Service in foreign army Other service for foreign country

L03 L04

L02

Dominican Republic

modesloss

Withdrawal

n.a.

No provision

dor 12, Párrafo IIa–IIc

n.a.

n.a. Withdrawal

Withdrawal

n.a.

procedure

Const 20

No provision dor 12, Párrafo IIf

dor 12, Párrafo IId, IIe

No provision

articles

Person acquired citizenship by naturalization and has taken up arms against the dr, been involved in attempts to overthrow the government, or committed acts of disloyalty or ingratitude towards the country. Loss can result in statelessness.

n.a.

Person acquired citizenship by naturalization and has been absent from dr territory for 10 years, or establishes permanent residence abroad within 1 year after naturalization. Loss can result in statelessness. n.a. Person acquired citizenship by naturalization and, while resident in the dr, entered the state public service of another country without permission from the dr. Loss can result in statelessness. n.a.

n.a.

conditions

Dominican Republic (dr)

205

short description

Other offences

Fraudulent acquisition

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

idmode

L08

L09

L10

L15

L13b L14

L13a

L12

L11

Dominican Republic

modesloss

(Table continued)

No provision

No provision No provision

No provision

No provision

No provision

No provision

dor 12, Párrafo I, Párrafo IIh

dor 12, Párrafo IIg

articles

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

Withdrawal

Withdrawal

Procedure

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

Person acquired citizenship by naturalization and behaves him/herself immorally or acts contrary to public decency. Loss can result in statelessness. Person acquired citizenship based on false documents or documents belonging to someone else. Loss can result in statelessness. n.a.

conditions

206 chapter 5

Ecuador

207

Ecuador After gaining independence from Spain on 24 May 1822, Ecuador rejoined the viceroyalty of New Granada, of which it had formed part since 1739.1 New Granada was subsequently merged with the captaincygeneral of Venezuela. The territory thus created, known as ‘Gran Colombia’ (Great Columbia), comprised what are now Colombia, Panama, Ecuador and Venezuela, but it had already disintegrated by 1830.2 Ecuador declared itself independent from Gran Colombia on 13 May 1830 and the Constitution enacted on 23 September of that year contained the first provisions on nationality law.3 The current rules on nationality are laid down in Chapter 2 of the 2008 Constitution and Supreme Decree no. 276 of 1976.4 Unlike some other Latin American countries that use the terms nacionalización or adopción for naturalization,5 Ecuadorian law is more straightforward by using the term naturalización. Article 1 of the Decree makes clear that the grant of naturalization is discretionary. A16 only applies to Ecuadorian nationals by origin (de origen), who in some other countries are referred to as nationals by birth (por nacimiento). For the sake of consistency the country tables exclusively use the term ‘by birth’ in such cases. Since 1995, Ecuadorian nationality is no longer lost upon naturalization abroad,6 because Article 8 of the Constitution trumps Article 19 of the Decree. The latter still reads that in such cases loss takes effect by operation of law. While the acceptance of dual nationality hints at a liberal strand in Ecuadorian 1 See Federica Morelli in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 143, 151. It is worth mentioning that Ecuador (or Quito as it was then called) was coveted by Bolívar as well as San Martín, the two men whose armies liberated the Spanish territories from the North and South respectively. See M. Arana, Bolívar, 286. On these two important historical figures, see in particular J. Lynch, “Simón Bolívar y José de San Martín: La naturaleza del liderazgo en las revoluciones hispanoamericanas,” in Construyendo Patrias. Ibéroamerica 1810–1824. Una Reflexión, ed. G. Jiménez Codinach (México, d.f.: Fomento Cultural Banamex, 2010). 2 E. Williamson, The Penguin History of Latin America, 589. 3 Moosmayer, 75. 4 The Constitution and the Supreme Decree entered into force on 20 October 2008 and 2 April 1976, respectively, and are available at http://www.asambleanacional.gov.ec/documentos/ constitucion_de_bolsillo.pdf  and  https://www.urjc.es/ceib/espacios/migraciones/instrumentos/ ecuador/documentos/Ley_de_naturalizacion.pdf. 5 See e.g. Chile and Colombia, respectively. 6 M. Jones-Correa, “Under Two Flags: Dual Nationality in Latin American and its Consequences for Naturalization in the United States,” 1003.

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law, it is all the more remarkable that renunciation of citizenship is only possible for those who became Ecuadorian by naturalization. The loss provisisions in the Decree apply only to naturalized citizens and can, according to Article 16(1) of the Decree, potentially be supplemented by the Constitution. However, the Constitution does not currently list any grounds for loss. The dual nationality treaty with Spain and its additional protocol entered into force on 22 February 1964 and 5 July 2000, respectively.7 Bibliography Alvear, Belén. “El Otorgamiento de la Nacionalidad Ecuatoriana por Servicios Relevantes en el Marco de la Normativa Nacional.” Tesis (Facultad de Derecho), Puebla: Universidad de la Américas, 2010. http://dspace.udla.edu.ec/handle/ 33000/1361. Gualsaquí Silva, Wilson Israel. “Análisis a la Ley de Naturalización y Procedimiento para Otorgamiento de la Nacionalidad Ecuatoriana.” Tesis (Facultad de Derecho), Puebla: Universidad de la Américas, 2012. http://dspace.udla.edu.ec/handle/33000/1405. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 116–125. Izurieta Barzola, Daniela María. “Análisis de la doble nacionalidad en la constitución de la república del Ecuador del dos mil ocho.” Disertación previa a la obtención de título de licenciada en derecho, Quito: Pontificia Universidad Católica del Ecuador, 2012. http://ftp.puce.edu.ec/handle/22000/5375. Moosmayer, Peter. Staatsangehörigkeitsrecht von Kolumbien, Ekuador und Venezuela. Frankfurt am Main: Alfred Metzner Verlag, 1960. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012. 7 Vonk, 284, 296.

Descent (born in the country) Descent (born abroad)

A01a

A06

A03a A03b A04 A05

A02b

A02a

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

short description

idmode

A01b

Ecuador

modesacq

Const 8(1), ecu, 1, 4, 7

No provision No provision No provision No provision

No provision

Const 7(1)

Const 7(2); Const 8(3)

No provision

articles

Naturalization (discretionary)

n.a. n.a. n.a. n.a.

n.a.

Automatic

Automatic; Naturalization (discretionary)

n.a.

procedure

Person has been resident in Ecuador for at least 3 years. Other conditions: full capacity, good morals, ability to support oneself as well as family, written and oral proficiency in Spanish, general knowledge of the Constitution, history and geography of Ecuador, and no criminal convictions, chronic or contagious

n.a. n.a. n.a. n.a.

n.a.

Person (and his/her descendants up to the third degree) is born abroad to a citizen who was born in Ecuador; Person is a minor and born abroad to a citizen by naturalization. Person is born in Ecuador.

n.a.

conditions

Ecuador

209

Ecuador

short description

Socialization based acquisition Spousal transfer

Filial transfer Adoption

Transfer to other relatives Transfer from former citizen Spousal extension

modesacq

idmode

A07

A08

A09 A10

A11 A12 A13

(Table continued)

No provision No provision No provision

No provision Const 8(1), 8(2)

Const 8(1), 8(4), ecu, 4(3), 8

No provision

articles

n.a. Naturalization (discretionary) n.a. n.a. n.a.

Naturalization (discretionary)

n.a.

procedure

n.a. n.a. n.a.

Person is the spouse of a citizen or is in a factual relationship with a citizen. Ordinary residence requirement of 3 years is waived for foreign women who marry (or are widows of) an Ecuadorian male citizen. They do not have to obtain permission from their husband for naturalization. Residence requirement is reduced to 2 years for foreign males who marry an Ecuadorian female citizen, or if at least one child was born on Ecuadorian territory to him. n.a. Person is a minor adopted by a citizen.

disease, or activities aimed at the overthrow of the constitutional order or contrary to the national integrity. n.a.

conditions

210 chapter 5

Extension to other relatives Reacquisition

Restricted citizenship rights Citizenship of a specific country Cultural affinity

A15 A16

A17 A18

Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

Public service Financial assets

A24

A25 A26

A20 A21 A22 A23

A19

Filial extension

A14

No provision No provision

Const 8(1), 8(5)

No provision No provision No provision No provision

Const 7(3)

No provision No provision

No provision ecu, 21

ecu, 10

Naturalization (discretionary) n.a. n.a.

n.a. n.a. n.a. n.a.

Automatic

n.a. n.a.

n.a. Declaration

Naturalization (discretionary)

n.a. n.a.

Person has performed special services to Ecuador.

Person belongs to a community, people or nationality (in an ethnic sense) recognized by Ecuador and present in the border region. n.a. n.a. n.a. n.a.

Person is a minor whose father acquires citizenship and has parental authority over the child (without prejudice to the child’s right to opt for his or her nationality of origin). n.a. Person is a citizen by birth who, after naturalization abroad, has returned to Ecuador and has resided there for at least 2 years. Other conditions: renunciation of other citizenship. n.a. n.a.

Ecuador

211

short description

Acquisition of citizenship for other reasons

Ecuador

short description

Residence abroad

Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

idmode

A27

modesloss

idmode

L02

L03 L04

L07

L06

L05

Ecuador

modesacq

(Table continued)

n.a.

n.a.

No provision

No provision

n.a.

n.a. n.a.

Withdrawal

procedure

n.a.

procedure

No provision

No provision No provision

ecu, 16(4)

articles

No provision

articles

n.a.

n.a.

n.a.

Person is a citizen by naturalization and is absent from Ecuador for an uninterrupted period of more than 3 years (unless absence is deemed justified by the Ministry of Foreign Affairs). Loss can result in statelessness. n.a. n.a.

conditions

n.a.

conditions

212 chapter 5

Fraudulent acquisition

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

L09

L10

L15

L13b L14

L13a

L12

L11

Other offences

L08

No provision

No provision No provision

No provision

No provision

No provision

No provision

ecu, 12, 16(2)

ecu, 16(3)

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

Withdrawal

Withdrawal

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

Person is a citizen by naturalization and creates moral, social or political unrest. Loss can result in statelessness. Person acquired citizenship based on fake documents or wrong information. Loss can result in statelessness and will result in expulsion from Ecuador. n.a.

Ecuador

213

214

chapter 5

El Salvador Not being rich in the precious metals that the Spaniards sought after, ‘El Salvador…was relegated to the status of a backwater of the Spanish empire’ from the earliest days of settlement.1 Like the other Central American ter­ ritories, the country had belonged to the kingdom of Guatemala since 1568 before it declared itself independent from Spain on 15 September 1821. El Salvador subsequently joined the Central American Republic (also known as the United Provinces of Central America) on 1 July 1823 and declared its independence from this federated nation in January 1841.2 The first nationalityrelated provisions are found in the Constitution of 12 June 1824 (while still a member of the federation) and the Constitution of 18 February 1841 (after secession from the federation).3 The Salvadorian legislation relating to nationality is now handled in Title IV of the 1983 Constitution and the 1986 Aliens Act.4 The basic grounds for acquisition of citizenship could not be any simpler in El Salvador. It is automatically acquired by anyone born in the country and by everyone born abroad to a citizen of El Salvador. As regards A16, it is unclear what other requirements apply apart from the requirement that the person is a citizen by birth. Mode A18 is particularly interesting in the case of El Salvador. While naturalization normally requires one to have spent five years in the country, citizens of the Former Federal Republic of Central America (i.e. all Central American countries except Panama and English-speaking Belize) can acquire citizenship of El Salvador simply based on residence and compliance with a number of other conditions, such as a clean criminal record. In 1922, García Haro already referred to this ‘nacionalidad por confraternidad’ in the Constitutions of the Central American Republics.5 Booth, Wade and Walker give relevant insight into the relationship between Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua: 1 R.A. Haggerty, El Salvador, 6. 2 El Salvador, it is noted, was the only country of the five to remain loyal to the federation. On the United Provinces, see also the chapter about Costa Rica. 3 Hecker, 202. 4 The Constitution entered into force on 16 December 1983 and was last amended on 30 September 2011. See http://www.asamblea.gob.sv/eparlamento/indice-legislativo/buscador -de-documentos-legislativos/constitucion-de-la-republica. The Aliens Act (Ley de Extranjería, Decreto Legislativo no. 299) entered into force on 20 February 1986 and is available at http:// www.oas.org/dil/Migrants/El%20Salvador/Ley%20de%20extranjer%C3%ADa.%20 Decreto%20Legislativo%20%C2%BA%20299,%20del%2018%20de%20febrero%20de%20 1986,%20publicado%20el%2020%20de%20febrero%20de%201986.pdf. 5 R. García Haro, La nacionalidad en América hispana (Madrid: Editorial Reus, 1922), 27–28.

El Salvador

215

“The five”…share a common political heritage from the colonial period, during which Spain administered them as a unit. During the early national period (1823 to 1838) they formed a single state called the United Provinces of Central America [or the Central American Republic]. In the late nineteenth century, several ill-fated attempts at reunification occurred. In the 1960s the five joined to form a common market. More recent unification efforts include a common regional parliament and shared trade agreements with the United States. Out of this history comes a sense of Central American national identity and, among a surprisingly large segment of the region’s educated elite, a hope that someday the larger homeland might be reunited.6 A one-year residence requirement in turn applies to citizens of Spain and Hispanoamerican countries. It is worth noting that Honduras has a similar provision, but speaks of Iberoamerican instead of Hispanoamerican. The latter concept is more restrictive in that Brazil is excluded. Both definitions do include the Spanish-speaking Caribbean but exclude French Guyane, Guyana, Haiti, and Surinam. Finally, the term ‘Latin America’, used in the legislation of Panama and Venezuela, as we shall later see, is usually assumed to include French-speaking territories like French Guyane and Haiti.7 It is also pointed out that different procedures apply to citizens of the Central American republics, on the one hand, and citizens of Spain and Hispanoamerican countries, on the other. Where the latter are subject to a discretionary naturalization procedure, the former become citizens by declaration. This means, according to Article 90 of the Constitution, that they become citizens by birth. The only way Salvadorian citizens by birth can lose their citizenship is by renunciation. This is not conditional upon holding another citizenship and can therefore result in statelessness. Bibliography Domínguez Parada, Luis. “Notas sobre el régimen constitucional salvadoreño.” In Evolución de la organización político-constitucional en América Latina, 241 ff. México, d.f.: unam, 1978. 6 J.A. Booth, C.J. Wade, and T.W. Walker, Understanding Central America, 5, 50. 7 See the Diccionario panhispánico de dudas of the Real Academia Española at http://lema .rae.es/dpd/.

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Flores, Carlos Alberto. “La doble o múltiple nacionalidad en El Salvador.” Tesis (Facultad de Jurisprudencia y Ciencias Sociales). El Salvador: Universidad de El Salvador, 1993. http://www.csj.gob.sv/BVirtual.nsf/1004b9f7434d5ff106256b3e006d8a6f/d89a8f6d2 68bb1c406256b3e00747af4?OpenDocument. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 202–207. Orantes J. José Antonio. “La nacionalidad salvadoreña de las personas naturales y los principios de derecho internacional privado.” Revista de derecho de la universidad de El Salvador, no. 3 (1975 (junio)): 37–48.

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

A01a

A08

A07

A06

A05

A03a A03b A04

A02b

Socialization based acquisition Spousal transfer

short description

idmode

A01b A02a

El Salvador

modesacq

Const 92(4)

No provision

Const 92(2), els 28, 30, 32

No provision

No provision No provision No provision

No provision

Const 90(2) Const 90(1)

No provision

articles

Naturalization (discretionary)

n.a.

Naturalization (discretionary)

n.a.

n.a. n.a. n.a.

n.a.

Automatic Automatic

n.a.

procedure

Person is the spouse of a citizen and has been resident in El Salvador for 2 years, either before or after the marriage was celebrated.

Person has been resident in El Salvador for 5 years, swears an oath of loyalty, is not a citizen of a country with which El Salvador is at war, and no convictions for crimes committed in the country or abroad or criminal proceedings initiatives against the person. n.a.

n.a.

n.a. n.a. n.a.

n.a.

Person is born abroad to a citizen. Person is born in El Salvador.

n.a.

conditions

El Salvador

217

short description

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition Restricted citizenship rights Citizenship of a specific country

idmode

A09 A10 A11

A18

A16 A17

A13 A14 A15

A12

El Salvador

modesacq

(Table continued)

Const 90(3), els 32; Const 92(1)

Const 91 No provision

No provision No provision No provision

No provision

No provision No provision No provision

articles

Person is a former citizen by birth. n.a. Person is a citizen of a country formerly part of the Federal Republic of Central America, is permanently resident in El Salvador, is not a citizen of a country with which El Salvador is at war, and no convictions for crimes committed in the country or abroad or criminal proceedings initiatives against the person; Person is a citizen by birth of Spain or an Hispanoamerican country and has been resident in El Salvador for 1 year. Other conditions: see A06.

Declaration; Naturalization (discretionary)

n.a. n.a. n.a.

n.a.

n.a. n.a. n.a.

conditions

Declaration n.a.

n.a. n.a. n.a.

n.a.

n.a. n.a. n.a.

procedure

218 chapter 5

short description

Renunciation of citizenship Residence abroad

idmode

L01

L03 L04

Service in foreign army Other service for foreign country

El Salvador

modesloss

L02

Public service Financial assets Acquisition of citizenship for other reasons

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

A25 A26 A27

A24

A19 A20 A21 A22 A23

No provision No provision

Const 94(1)

Const 91, els 31

articles

No provision No provision No provision

Const 92(3)

No provision No provision No provision No provision No provision

n.a. n.a.

Withdrawal

Declaration

procedure

Naturalization (discretionary) n.a. n.a. n.a.

n.a. n.a. n.a. n.a. n.a.

Person is a citizen by naturalization and has been resident for 2 years uninterrupted in the country of origin, or has been absent from the territory of El Salvador for 5 consecutive years (unless permission was granted). Loss can result in statelessness. n.a. n.a.

No other conditions. Loss can result in statelessness.

conditions

n.a. n.a. n.a.

Person has rendered notable services to El Salvador.

n.a. n.a. n.a. n.a. n.a.

El Salvador

219

short description

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship Loss for other reasons

idmode

L05

L15

L13b L14

L13a

L12

L11

L07 L08 L09 L10

L06

El Salvador

modesloss

(Table continued)

No provision

No provision No provision

No provision

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a. n.a. n.a. n.a.

n.a.

No provision

No provision No provision No provision No provision

n.a.

procedure

No provision

articles

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a. n.a. n.a. n.a.

n.a.

n.a.

conditions

220 chapter 5

Grenada

221

Grenada While Grenada was discovered by Columbus in 1498 and given the name Concepción, the island was indicated on maps as Granada as early as 1523. Despite subsequent occupation by the French and British, the name stuck, ‘changing from Granada to La Grenade to Grenada’.1 Britain acquired sovereignty over the island in 1783 by virtue of the Treaty of Versailles, and the country became independent on 7 February 1974.2 Chapter 7 of the Constitution and the 1976 Citizenship Act are relevant for contemporary nationality law in Grenada. The Aliens (Naturalisation) (Special Circumstances) Regulations sro 6 of 1978 (abbreviated as ‘ARs’ in the table) are also relevant. Most recently, on 2 August 2013, the Grenada Citizen by Investment Act was adopted.3 It might be an interesting exercise to compare Grenada to some other Windward Islands. In contrast to St Lucia for example, Grenada distinguishes between children born in and out of wedlock (Article 100(2) of the Constitution). Another distinction is that the residence period for both ordinary naturalization under A06 and facilitated access under A18 is in both cases lower in Grenada than in St Lucia. The residence requirement for A06 and A18 respectively is six and five years in Grenada compared to eight and seven years in St Lucia. After St Kitts (1984), Dominica (1993) and A&B (2012), Grenada is the fourth Caribbean country to have implemented ‘investor citizenship’ in 2013. Unlike the other countries, however, where residence in the country is not required for foreign investors interested in acquiring citizenship, residence is compulsory in Grenada. ‘Here in Grenada’, according to the Education Minister, ‘because we are so concerned about the protection of the image of our country, we have gone the extra mile to insist that those who apply for permanent residence should reside in our country’.4 gre 9(1) specifically states that only citizens by registration or naturalization can be deprived of their citizenship. All grounds for loss can result in statelessness, including L08, referring to persons who within five years of acquisition have been sentenced to imprisonment for at least twelve months. This in 1 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, 347. It is noted that the Spanish had made no efforts to establish a colony on the island. This was only done by the French in 1652. 2 Fransman, 954–958. 3 The Constitution, which entered into force on 7 February 1974 and was last amended on 27 October 2005, is available at http://pdba.georgetown.edu/constitutions/grenada/grenada .html. For both the Grenada Citizenship Act 1976 (Act No 12), which entered into force on 5 November 1976 and was last amended by Act No 36 of 1998, and the 2013 Investment Act, go to www.gov.gd, and click on ‘laws of Grenada’. 4 http://www.gov.gd/egov/news/2013/aug13/07_08_13/item_1/citizen-by-investment.html.

222

chapter 5

contrast to many other countries in the region, for example Barbados, which provide for an exception with regard to L08 in the sense that loss under this mode is not allowed to render someone stateless. In other words, these countries allow all grounds for loss to result in statelessness with the exception of this particular rule under L08. In Grenada, however, this ground for loss can also result in statelessness, and gre 9(4) only states rather vaguely that ‘The Minister shall not deprive a person of his or her citizenship…unless he or she is satisfied that it is not conducive to the public good that that person should continue to be a citizen of Grenada’.5 A similar phrase is found in the legislation of some other former British colonies, but it was considered too vague a phrase to merit special mention in the country tables. In anticipation of the forthcoming unhcr Guidelines on this particular topic,6 suffice it to say for now that it is very problematic that Grenada (but for example also Jamaica) allow for statelessness to arise under L08. Grenada does not address the nationality position of refugees or stateless persons in the Constitution or the Nationality Act. The only piece of information found on this matter are the Aliens (Naturalisation) (Special Circum­ stances) Regulations sro 6 of 1978, which state, similar to St Vincent, that refugees and stateless persons may be granted a certificate of naturalization at the discretion of the Minister (ARs 2). The only explicit condition is that the person must be of good character, as ARs 3 continues in the following way: In cases where the applicant is a political refugee or stateless person the application shall contain sufficient information to enable the Minister to satisfy himself or herself that the person in respect of whom it is made is a political refugee or stateless person and is of good character. Since these provisions do not have any concrete effects in terms of securing a nationality for either refugees or stateless persons, they clearly cannot be considered to offer these groups sufficient protection seen from the perspective of Article 34 of the 1951 Convention Relating to the Status of Refugees7 and Article 32 of 1954 Convention Relating to the Status of Stateless Persons.8

5 If ‘Grenada’ is replaced by ‘the United Kingdom and Colonies’, the provision is identical to 20(5) bna 1948. 6 See the chapter on Dominica. 7 Geneva, 28 July 1951 (unts 189, 137). 8 New York, 20 February 1957 (unts 360, 117). See also O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness,” 58–66.

Grenada

223

Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 126. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 954–958.

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation)

A01a

A06

A05

A03a A03b A04

A02b

A02a

Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

short description

idmode

A01b

Grenada

modesacq

Naturalization (discretionary)

n.a.

No provision

gre 7

n.a. n.a. n.a.

n.a.

Automatic

Automatic

n.a.

procedure

No provision No provision No provision

No provision

Const 96

Const 97

No provision

articles

Person has been resident in Grenada for 12 months immediately prior to the application, and was either resident in Grenada, or in government service, or had partly such residence and partly such service for 5 out of 7 years predating the 12-month period. Other conditions:

n.a.

n.a. n.a. n.a.

Person is born in Grenada. Unless born to a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

Person is born abroad to a citizen otherwise than by descent.

n.a.

conditions

224 chapter 5

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition Restricted citizenship rights

A09 A10 A11

A16 A17

A13 A14 A15

A12

A08

Socialization based acquisition Spousal transfer

A07

No provision No provision

No provision No provision No provision

No provision

No provision gre 4 No provision

Const 98, gre 5(3)

No provision

n.a. n.a.

n.a. n.a. n.a.

n.a.

n.a. Automatic n.a.

Registration (entitlement)

n.a.

n.a. n.a.

n.a. n.a. n.a.

n.a.

Person is the spouse of a citizen (or was married to a person who was a citizen during the subsistence of the marriage). Other conditions: oath of loyalty (only for British protected persons and persons who are not Commonwealth citizens or citizens of Ireland). n.a. Person is a minor who is adopted by a citzen. n.a.

good character, full capacity, sufficient knowledge of English, intent to reside in Grenada or continue government service, and oath of allegiance (only for British protected persons and persons who are not Commonwealth citizens or citizens of Ireland). Minister is explicitly allowed to waive certain requirements. n.a.

Grenada

225

short description

Citizenship of a specific country

Cultural affinity Presumed citizens Very long residence Refugees

Stateless or unclear citizenship Special achievements Public service

idmode

A18

A19 A20 A21

A23

A25

A24

A22

Grenada

modesacq

(Table continued)

No provision

No provision

ARs 2, 3

ARs 2, 3

No provision No provision No provision

gre 5

articles

n.a.

n.a.

Naturalization (discretionary) Naturalization (discretionary)

n.a. n.a. n.a.

Registration (discretionary)

procedure

n.a.

n.a.

Person is stateless. Other conditions: good character.

Person is a political refugee. Other conditions: good character.

Person is a Commonwealth citizen or a citizen of Ireland and has been resident in Grenada, or has been in government service, or has had partly such residence and partly such service for at least 5 years immediately prior to the application. Minister may reduce residence requirement (but required minimum of 12 months’ residence). Other conditions: good character, full capacity, adequate knowledge of English, intent to reside in Grenada or to continue government service, and oath of allegiance (only for citizens of Ireland). n.a. n.a. n.a.

conditions

226 chapter 5

Grenada

short description

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth)

modesloss

idmode

L01

L05

L06

L04

L02 L03

Financial assets Acquisition of citizenship for other reasons

A26 A27

Withdrawal

n.a.

n.a.

No provision

No provision

n.a. n.a.

Withdrawal

procedure

n.a. n.a.

Const 99(2), gre 9(3)b

Const 99(3), gre 10 No provision No provision

articles

No provision No provision

n.a.

Person acquired citizenship by registration or naturalization and has in any way assisted the enemy in a war in which Grenada was engaged. Loss can result in statelessness. n.a.

Person is or becomes a citizen of another country. Renunciation only takes effect after registration by the authorities. n.a. n.a.

conditions

n.a. n.a.

Grenada

227

short description

Disloyalty or treason

Other offences

Fraudulent acquisition

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity

idmode

L07

L08

L09

L10

L13a

L12

L11

Grenada

modesloss

(Table continued)

n.a. n.a.

No provision

No provision

n.a.

n.a.

No provision

No provision

Withdrawal

Withdrawal

Withdrawal

procedure

Const 99(2), gre 9(2)a

Const 99(2), gre 9(3)c

Const 99(2), gre 9(3)a

articles

n.a.

n.a.

n.a.

Person acquired citizenship by registration or naturalization and has been disloyal (in act or speech) towards Her Majesty. Loss can result in statelessness. Person acquired citizenship by registration or naturalization and has within 5 years of acquisition been sentenced in any country to imprisonment for at least 12 months. Loss can result in statelessness. Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness. n.a.

conditions

228 chapter 5

L15

L13b L14

Adoption Establishment foreign citizenship Loss for other reasons

No provision

No provision No provision

n.a.

n.a. n.a.

n.a.

n.a. n.a.

Grenada

229

230

chapter 5

Guatemala The Federal Research Division’s publication on Guatemala starts off by saying that the country’s history is characterized by the existence of two societies, and that half of the Guatemalan people still live within the Indian culture.1 This confirms what was already stated in Chapter 1, namely that the country has struggled ‘with the question of how to integrate the approximately two-thirds of its population that is indigenous and much of which speaks no Spanish’.2 Guatemala was conquered in 1523 by order of Hernán Cortés, the viceroy of New Spain. In 1568 admistrative changes were implemented with the establishment of the audiencia of Guatemala: The five-man audiencia was the highest governmental authority. The president of the audiencia during most of the colonial period held the additional titles of governor and captain general, thus combining administrative, judicial, and military authority. He was appointed by the king and was responsible to him; in fact, the colony was sometimes referred to as the kingdom of Guatemala.3 It is worth mentioning that while other countries in Latin America (including Mexico) fought for their independence, ‘the area from Guatemala to Costa Rica remained at peace and ultimately declared itself free from Spain without having to support its decision in battle’.4 As already described in several other country chapters, the Central American Republics formed a short-lived federation after gaining independence from Spain.5 Guatemala acceded on 1 July 1823, and withdrew in March 1839. Grounds for acquisition and loss of Guatemalan nationality can for the first time be found in the Constitution of 11 October 1825, when the country was still a member of the federation.6 Guatemalan nationality law is currently handled in Chapter 2 of the 1985 Constitution and the 1966 Nationality Act.7 1 R.F. Nyrop, Guatemala, a country study, 2nd ed. (Washington, D.C.: Federal Research Division of the Library of Congress, 1984), 3. 2 J.A. Booth, C.J. Wade, and T.W. Walker, Understanding Central America, 8–9. 3 R.F. Nyrop, Guatemala, 8. 4 C. Gibson, Spain in America, 205. See also A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 14. 5 See Jordana Dym in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 311–319. 6 Hecker, 127. 7 The 1985 Constitution entered into force on 14 January 1986 and was last amended by Acuerdo legislativo No. 18–93 on 17 November 1993. See http://www.oas.org/juridico/MLA/sp/gtm/sp _gtm-int-text-const.pdf. The Nationality Act (Decreto número 1613; Ley de Nacionalidad y sus

Guatemala

231

Guatemala is hardly unique in providing for automatic acquisition iure soli. What is more remarkable from a comparative perspective is that any person born abroad to a citizen also automatically acquires citizenship iure sanguinis. In other words, there is no first or second generation limitation as found in Argentina and Chile, respectively. In contrast to most other Latin American countries, Guatemalan citizens by birth hold nationality de origen instead of por nacimiento. The concept of nationality is, like in Venezuela, defined very specifically in the Nationality Act, which moreover also consistently uses the term nacionalidad instead of ciudadanía. The Nationality Act was last amended in 1996, in other words, after the last amendment to the Constitition in 1993. It is therefore remarkable that the Act still refers to the Constitution’s old Articles on the matter of nationality – that is, Articles 5 to 12 instead of Articles 144 to 148. We have seen something similar in the case of Chile. The constitutional amendment is also relevant from another perspective. The previous Constitution contained detailed rules on a number of issues not dealt with by the present Constitution – for example the effects of adoption (A10) and marriage (A08) on acquisition of citizenship. For our purposes, this means that I have disregarded Chapter 5 of the Nationality Act (on naturalización declaratoria), which refers specifically to repealed subsections of the former Article 7. Since Chapter 5 builds on the constitutional provisions that have been deleted by the Constitution currently in force, the analysis of naturalization under mode A06 is limited to Chapter 4 of the Nationality Act (on naturalización concesiva). The rules under A18 are very similar to those of El Salvador. That is, Guatemalan citizenship can be acquired by citizens of the former Federal Republic of Central America (i.e. all Central American countries except Panama and English-speaking Belize) by simply establishing residence. They can retain their nationality of origin but are subsequently also considered to be Guatemalan citizens by birth.8 What is absent from Guatemalan law is an additional reference to citizens of Spain and/or Iberoamerican countries.9

reformas) entered into force on 29 October 1966 and was last amended on 21 October 1996 by Decreto número 86–96. See http://www.refworld.org/docid/3e5110302.html. 8 Mendoza G and Mendoza Orantes (at 188) call this the Gran naturalización, meaning that ‘la equiparación, en cuanto a derechos se refiere, es total. No hay diferencias entre naturales y nacionalizados’. 9 For the concept of Iberoamerica, see the chapter on El Salvador.

232

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Naturalization is possible in Guatemala after five years of uninterrupted residence. The strong links existing between Guatemala and other Central American republics also become evident under mode A19, which states that only two years’ residence in Guatemala is required if the remaining three years have been spent in another Central American country. It has been argued that something similar would ideally be introduced in Europe. Indeed, non-eu citizens or spouses of eu citizens who may have spent many years in different eu Member States may currently experience difficulties naturalizing in any of them because they do not meet the residence or language requirements for naturalization – which are still decided on by countries individually.10 As a result, these possibly long-term European residents never become eligible for eu citizenship, which is dependent on holding the nationality of a Member State. The A23 provision is unique from a comparative perspective, since very few countries in the Western Hemisphere grant facilitated access to stateless persons. gua 33(3)d reduces the residence period from five to two years and has a broad personal scope since both stateless persons and those with undetermined nationality are eligible.11 In common with most Latin American countries, Guatemala provides that citizens by birth can never be deprived of their nationality (Article 144 of the Constitution and gua 3). More radical, and in violation of international norms,12 is gua 3. This Article states that once Guatemalan citizenship has been acquired, it can never be renounced.13 This inter alia means that any Guatemalan citizen who naturalizes abroad will remain a citizen. The only exception allowed under the law is when renunciation is required by the country where the person naturalizes. In case a Guatemalan citizen by birth – but not by naturalization – has forcibly given up his or her citizenship upon naturalization abroad, he/she can reaquire it under mode A10. The law, finally, also allows loss of nationality if it was acquired by fraud. The possible statelessness that may result from this is allowed under international law.14 The dual nationality treaty with Spain and its additional protocol entered into force on 25 January 1962 and 7 February 2001, respectively.15 10 11 12 13 14 15

Vonk, 334, footnote 5. For remarks on ‘undetermined nationality’, see para. 22 and 23 of unhcr, “Guidelines on Statelessness No. 4.” O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness,” 66. This is confirmed by Mendoza G and Mendoza Orantes, 187. O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness,” 84. Vonk, 284, 296.

Guatemala

233

Bibliography Castillo González, Jorge Mario. Constitución política de la República de Guatemala: comentarios, explicaciones, interpretación jurídica, documentos de apoyo opiniones y sentencias de la Corte de Constitucionalidad. 7th ed. Guatemala: Impresiones Gráficas de Guatemala, 2010, p. 304–306. De La Roca de Rodriguez, Claudia Patricia. “Problemática jurídica en relación al derecho de la nacionalidad de origin en nuestra legislación.” Tesis (licenciatura en ciencias jurídicas y sociales). Guatemala: Universidad Francisco Marroquin, Facultad de Derecho, 1996. http://www.tesis.ufm.edu.gt/pdf/2162.pdf. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 127–133. Lima Conde de Montoya, Lourdes Carlota. “Análisis jurídico y doctrinario del uso al derecho de la doble nacionalidad americana guatemalteca, en forma automática de los migrantes guatemaltecos nacionalizados americanos.” Guatemala: Universidad de San Carlos de Guatemala. Facultad de ciencias jurídicas y sociales, 2009. http:// biblioteca.usac.edu.gt/tesis/04/04_8172.pdf. Mendoza G, Lissette Beatriz and Ricardo Alberto Mendoza Orantes. Constitución explicada: artículo por artículo. San Salvador: Editorial Jurídica Salvadoreña, 2007, p. 187–190. Ministerio de Gobernación. Ley de nacionalidad. Guatemala: Tipografía Nacional, 1966. Recinos, Marco Augusto. Nacionalidad y nacionalismo. Guatemala: Tipografía nacional, 1940. [103 p; discusses the role of Guatemalan nationality in different fields of the law, such as penal and administrative law.] Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012.

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

A01a

A07

A06

A05

A03a A03b A04

A02b

A02a

Socialization based acquisition

short description

idmode

A01b

Guatemala

modesacq

No provision

n.a.

Naturalization (discretionary)

n.a.

No provision

Const 146, gua 32–39

n.a. n.a. n.a.

n.a.

Automatic

Automatic

n.a.

procedure

No provision No provision No provision

No provision

Const 144

Const 144

No provision

articles

Person has been resident in Guatemala for 5 years uninterrupted or 10 years in total. Other conditions: renunciation of another citizenship, good behaviour, source of income or occupation sufficient for support, language and civics test, and oath of loyalty. n.a.

n.a.

n.a. n.a. n.a.

Person is born in Guatemala. Unless parents are foreign diplomats. n.a.

Person is born abroad to a citizen.

n.a.

conditions

234 chapter 5

Restricted citizenship rights Citizenship of a specific country

Cultural affinity

A17

A19

A18

A16

A13 A14 A15

A12

Spousal transfer Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition

A08 A09 A10 A11

gua 33(3)b

Const 145

No provision

gua 3

No provision No provision No provision

No provision

No provision No provision No provision No provision

Naturalization (discretionary)

Declaration

n.a.

Declaration

n.a. n.a. n.a.

n.a.

n.a. n.a. n.a. n.a.

Person is citizen by birth of a country formerly part of the Federal Republic of Central America, and is permanently resident in Guatemala. No renunciation requirement (without prejudice to what is provided in treaties concluded with other Central American countries). Person has been resident in Guatemala for 2 years uninterrupted and resided in another Central American country for 3 years before arriving in Guatemala. Other conditions: see A06.

Person is a former citizen by birth who had to renounce citizenship to acquire citizenship of another country, and reestablishes residence in Guatemala. n.a.

n.a. n.a. n.a.

n.a.

n.a. n.a. n.a. n.a.

Guatemala

235

Guatemala

short description

Presumed citizens

Very long residence Refugees Stateless or unclear citizenship

Special achievements

Public service

Financial assets Acquisition of citizenship for other reasons

modesacq

idmode

A20

A21 A22 A23

A24

A25

A26 A27

(Table continued)

No provision No provision

gua 33(3)a

gua 33(3)c

No provision No provision gua 33(3)d

No provision

articles

n.a. n.a.

Naturalization (discretionary)

Naturalization (discretionary)

n.a. n.a. Naturalization (discretionary)

n.a.

procedure

n.a. n.a. Person has been resident in Guatemala for 2 years uninterrupted and is stateless or of undetermined citizenship. Other conditions: see A06. Person has been resident in Guatemala for 2 years uninterrupted and has recognized merits in the fields of science, art or philantropy. Other conditions: see A06. Person has been resident in Guatemala for 2 years uninterrupted and has rendered important services to Guatemala that contributed to the country’s economic, social or cultural development. Other conditions: see A06. n.a. n.a.

n.a.

conditions

236 chapter 5

short description

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization)

idmode

L01

L10

L07 L08 L09

L06

L05

L04

L02 L03

Guatemala

modesloss

n.a. n.a. Withdrawal n.a.

No provision

n.a.

No provision

No provision No provision gua 22

n.a.

n.a.

n.a. n.a.

n.a.

procedure

gua 3

No provision

No provision No provision

gua 3

articles

n.a. n.a. Person acquired citizenship based on false documentation. Loss can result in statelessness. n.a.

n.a.

n.a.

n.a.

Renunciation is not possible, unless this is required to obtain citizenship by naturalization in another country. n.a. n.a.

conditions

Guatemala

237

short description

Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship Loss for other reasons

idmode

L11

L15

L13b L14

L13a

L12

Guatemala

modesloss

(Table continued)

No provision

No provision No provision

No provision

No provision

No provision

articles

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

procedure

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

conditions

238 chapter 5

Guyana

239

Guyana Guyana was called British Guiana before it became an independent Commonwealth country on 26 May 1966.1 The territory had been formally ceded by the Netherlands to Britain in 1814, the Dutch having established the first European settlement in the area of Guyana in 1616.2 Guyana’s first legislation on nationality can be found in the ‘independence constitution’ of 26 May 1966. Chapter 4 of the 1980 Constitution and the 1967 Guyana Citizenship Act are relevent at present.3 Against the background of Knight’s quoted remark in Chapter 1 that ‘the differences in beliefs, values, and attitudes of the Trinidadian and the Guyanese are perhaps no greater than those between the English and the Welsh or the Castilian and the Andalucian’,4 it may be a worthwhile exercise to compare the citizenship legislation of both countries. A02a is exactly the same for both countries and A01b, although not completely identical, is nevertheless very similar in terms of substance. That is, persons born abroad to a parent who is a citizen otherwise than by descent (i.e. iure soli or by naturalization) automatically acquire citizenship; a non-automatic procedure is available in cases where the person is a citizen by descent. Note that the registration procedure is by entitlement in T&T and discretionary in Guyana. The ius soli exception for children born in Guyana to foreign diplomats is very common and recognized under international law. The optional Protocol to the 1961 Vienna Convention on Diplomatic Relations – called the Optional Protocol concerning Acquisition of Nationality 1961 – provides in Article II that ‘Members of the mission not being nationals of the receiving State, and members of their families forming part of their household, shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State’.5 1 Fransman, 958–963. He notes that in addition to British Guiana, there was Dutch Guiana (now Surinam), French Guiana, Portuguese Guiana (now Brazil), and Spanish Guiana (now Venezuela). 2 L.R. Mortimer, Guyana and Belize, 6. 3 The Constitution entered into force on 20 February 1980 and was last amended by Act No. 2 of 2007. See http://legalaffairs.gov.gy/information/laws-of-guyana/cat_view/8-laws-of -guyana.html. The Guyana Citizenship Act (No 14 of 1967; Cap 14:01) entered into force on 26 May 1966 and was last amended by Act No. 14 of 1998. See http://www.gecom.org.gy/pdf _laws/GUYANA%20CITIZEN%20ACT.pdf. 4 F.W. Knight, The Caribbean, xvi. 5 http://treaties.un.org/doc/publication/UNTS/Volume%20500/v500.pdf.

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The residence requirement laid down in A06 is exactly the same in Guyana and T&T. Some more stringent naturalization requirements apply in the latter country. Provisions concerning ‘spousal transfer’ and ‘spousal extension’ (A08 and A13) do exist in Guyana but not in T&T. The reverse is true for reacquisition of citizenship (A16). Both countries grant facilitated access to Commonwealth citizens and Irish citizens. These groups can become citizens through a discretionary registration procedure. Like for A06, conditions are stricter in T&T than in Guyana. It may be concluded from the analysis that Guyana stays very close to British nationality law as in force at the time of independence. Thus, in relation to modes A03a and A03b, guy 8 corresponds almost completely with Article 2 of the British Nationality (No 2) Act of 1964, which was repealed by the bna 1981.6 Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 134. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 958–963. 6 Fransman, 1564.

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings

Born stateless

Establishment of paternity Birth in country (acquisition after birth)

A02b

A03b

A04

A05

A03a

Birth in country (2nd generation)

A02a

A01b

Guyana

modesacq

n.a. n.a.

No provision

Automatic

Automatic

n.a.

Automatic; Registration (discretionary) Automatic

n.a.

procedure

No provision

guy 8(1)

guy 8(2)

No provision

Const 43

Const 44; guy 5(1), 5(2)

No provision

articles

n.a.

Person is a newborn infant found in Guyana of unknown parentage. Person is born to a mother who is a citizen and the child would otherwise be stateless. n.a.

Person is born in Guyana. Unless born to a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

Person is born abroad to a citizen otherwise than by descent; Person is born abroad to a citizen who was also born abroad.

n.a.

conditions

Guyana

241

short description

Ordinary naturalization

Socialization based acquisition Spousal transfer

Filial transfer Adoption

Transfer to other relatives Transfer from former citizen Spousal extension

idmode

A06

A07

A08

A09 A10

A11

A13

A12

Guyana

modesacq

(Table continued)

Const 45

No provision

No provision

No provision guy 5(3)

Const 45

No provision

Const 48(a), guy 9, guy 1st and 2nd Schedule

articles

Registration (entitlement)

n.a.

Registration (entitlement) n.a. Registration (discretionary) n.a.

Person is the spouse of someone who acquires citizenship. Registration may be refused in the interests of national security or public policy.

n.a.

n.a.

Person is the spouse of a citizen. Registration may be refused in the interests of national security or public policy. n.a. Person is a minor who is adopted by a citizen.

Person has been resident in Guyana for 12 months immediately prior to the application, and 5 out of 7 years prior to the 12-month period. Other conditions: good character and intent to reside in the country. Minister is explicitly allowed to waive certain requirements. Less stringent conditions apply to British protected persons. n.a.

Naturalization (discretionary)

n.a.

conditions

procedure

242 chapter 5

A19 A20 A21 A22 A23

A18

A16 A17

A14 A15

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship

Filial extension Extension to other relatives Reacquisition Restricted citizenship rights Citizenship of a specific country

No provision No provision No provision No provision guy 4(2), guy 7

guy 4(1)

No provision No provision

No provision No provision

n.a. n.a. n.a. n.a. Registration (entitlement)

Registration (discretionary)

n.a. n.a.

n.a. n.a.

Person is a Commonwealth citizen or a citizen of Ireland and has been resident in Guyana, or in the service of the government of Guyana, or had partly such residence and partly such service, for 5 years immediately prior to the application. Other conditions: full capacity. Minister is explicitly allowed to waive certain requirements. n.a. n.a. n.a. n.a. Person is and has always been stateless. Other conditions: the person was born before 25 May 1966 to a mother who was a citizen of the United Kingdom and Colonies at the time of his/ her birth by reason of her having been born in the former Colony of British Guyana, or was born after 25 May 1966 to a mother who was a citizen at the time of his/her birth, or was born in Guyana. Registration may be refused in the interests of national security or public publicy.

n.a. n.a.

n.a. n.a.

Guyana

243

Guyana

short description

Special achievements Public service Financial assets Acquisition of citizenship for other reasons

Guyana

short description

Renunciation of citizenship

Residence abroad Service in foreign army

modesacq

idmode

A24

A25 A26 A27

modesloss

idmode

L01

L02 L03

(Table continued)

No provision No provision

guy 10

articles

No provision No provision No provision

No provision

articles

n.a. n.a.

Declaration

procedure

n.a. n.a. n.a.

n.a.

procedure

Person is of full capacity and is or will become a citizen of another country. Renunciation only takes effect after registration by the authorities. If citizenship of another country is not acquired within 6 months from the date of registration, the renunciation will become invalid. n.a. n.a.

conditions

n.a. n.a. n.a.

n.a.

conditions

244 chapter 5

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

Other offences

Fraudulent acquisition

Non-renunciation (acquisition by naturalization)

L05

L07

L08

L09

L10

L06

Other service for foreign country

L04

Withdrawal

n.a.

No provision

Withdrawal

guy 11(1)

guy 11(2)c, 11(3)b

Withdrawal; Withdrawal

n.a.

No provision

Const 46(2); guy 11(2)a, 11(2)d

Withdrawal

Withdrawal

Const 46(1)

guy 11(2)b

Person is a citizen who has exercised rights in another country that are accorded exclusively to that country’s citizens. Loss can result in statelessness; Person acquired citizenship by registration or naturalization and been disloyal (in act or speech) to the Constitution. Loss can result in statelessness. Person acquired citizenship by registration or naturalization and has within 5 years of acquisition been sentenced in any country to imprisonment for at least 12 months. Loss cannot result in statelessness. Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of any material fact. Loss can result in statelessness. n.a.

Person acquired citizenship by registration or naturalization and has in any way assisted the enemy in a war in which Guyana was engaged. Loss can result in statelessness. Person acquires citizenship of another country otherwise than by marriage. n.a.

Guyana

245

short description

Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship Loss for other reasons

idmode

L11

L15

L13b L14

L13a

L12

Guyana

modesloss

(Table continued)

No provision

No provision No provision

No provision

No provision

No provision

articles

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

procedure

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

conditions

246 chapter 5

Haiti

247

Haiti Haiti, occupying the western part of the island formerly known as Hispaniola, was transferred from Spain to France at the Peace of Ryswick (1697), and, having fought a war of independence against France from 1791 to 1803, was the second country after the United States to become independent in the Western Hemisphere.1 It needs to be stressed that, in contrast to the other independence movements in the Western Hemisphere, the Haitian struggle for political independence was secondary to establishing racial equality and the abolition of slavery. Independence did not, moreover, result in a republic but led to a form of authoritarianism. In fact, there was no mention of any ‘rights’ for the citizens in the newly drafted declaration of independence.2 The first rules on Haitian nationality are consequently found as early as 1801, the year the first Constitution was enacted.3 The current legislation pertaining to Haitian nationality law is encountered in Title II of the 1987 Constitution,4 the 1984 Nationality Act,5 and the 1974 Decree on Adoption.6 The reference in hai 2(3) to the African race has a long history. Joseph Justin writes that the Constitution of 1816 completely excluded whites from Haitian nationality. Yet, while this was understandable at the time because of the recurrent attempts by France to reconquer the island, he notes that whites were still barred from acquiring Haitian nationality in 1825, when the danger of France regaining its former possession had passed.7 1 R.L. Worden, Dominican Republic and Haiti, 268. 2 See David Geggus in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 124–125, 128. Aiming at a complete rupture with France, it was decided to replace the French name Saint-Domingue. Why the term Haiti was ultimately chosen remains unclear, however, and the choice is not explained in the declaration of independence. 3 Hecker, 135. 4 The Constitution entered into force on 10 March 1987 and was last amended on 19 June 2012. A version of the Constitution without the 2012 amendment can be found on http://pdba. georgetown.edu/constitutions/haiti/haiti.html. For the nationality-related consequences of the 2012 amendment, see in particular page 7 of http://www.refworld.org/docid/50fd44852. html. 5 The official publication of the Décret sur la nationalité Haïtienne in Le Moniteur of 8 November 1984 is on file with the author. 6 The Decree on adoption, which entered into force on 4 April 1974, is found at http://www .apaehaiti.fr/cms/les-lois-de-l-adoption/haiti-decret-du-4-avril-1974-sur-l-adoption. 7 ‘Bien que tout danger eût disparu à partir de 1825, par l’Ordonnance de Charles X, qui virtuellement reconnut notre souveraineté, on continuait néanmoins à priver l’étranger de race blanche, du droit d’aquérir la nationalité haïtienne’. Justin, 48.

248

chapter 5

It is remarkable that foreign women can acquire Haitian citizenship by declaration upon marrying a Haitian citizen, without any former residence being required and without having to give up their original citizenship; foreign men, in contrast, need to have been married to a Haitian citizen for two years, they apparently need to give up their original citizenship, and then they only acquire citizenship by discretionary naturalization. This rule can be traced back to the 1957 Convention on the Nationality of Married Women, to which Haiti is not a party however.8 Article 3 reads that 1.

2.

Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy. Each Contracting State agrees that the present Convention shall not be construed as affecting any legislation or judicial practice by which the alien wife of one of its nationals may, at her request, acquire her husband’s nationality as a matter of right.

Of note, some States have denounced this Convention in recent years, because it contains some rules which conflict with the complete equal treatment of men and women in nationality law as prescribed by the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (cedaw).9 After all, as the foreign female spouse of a citizen has facilitated access to nationality, she is indirectly discriminated because – if the couple wants a common nationality – it is easier for her to adopt the nationality of the husband than vice versa, since the husband does not have facilitated access to the nationality held by his spouse.10 Haitian law used to be absolutely clear that dual nationality was in no case permitted (Article 15 of the Constitution and hai 26(1)). However, this changed radically following the 2012 constitutional amendement. In addition 8 9

10

New York, 20 February 1957 (unts 309, 65). Countries that have denounced the Convention include the Netherlands, Luxembourg and the United Kingdom. See http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY &mtdsg_no=IV-8&chapter=4&lang=en. The great number of States that are party to the Convention to this day can probably be attributed to the United Nations not being crystal clear about cedaw having superseded the 1957 Convention. See also G.-R. de Groot, “Equality of Women and Men in Nationality Law,” in The Women’s Convention Turned 30: Achievements, Setbacks, and Prospects, ed. I. Westendorp (Cambridge-Antwerp-Portland: Intersentia, 2012), 185–200.

Haiti

249

to introducing a few new provisions, the amendment revoked Articles 12.1, 12.2, 13, 14 and 15 of the 1987 Constitution. This essentially means that all grounds for loss listed in the Constitution no longer apply. The Nationality Act, however, while duplicating several of these grounds for loss, also lists a number of grounds that are not expressly mentioned in the Constitution. Although it likely that these grounds for loss – that is, L04 and L07 – are also no longer in force, they are still listed in the country table. On a final note, it is mentioned that mode L14 can apparently result in statelessness, and in this respect the situation in Haiti is comparable to that in Canada.11 Bibliography Achille, Théodore E. Les Haïtiens et la double nationalité. Québec: Editions du Marais, 2007. Bernardin, Raymond. La nationalité haïtienne. Constitutions et lois de 1804 à 1987. Port-au-Prince: L’Imprimeur II, 2001. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 135–143. Justin, Joseph. De la nationalité en Haïti, suivie d’un aperçu historique sur le droit haïtien. Port-au-Prince: Imprimerie de l’Abeille, 1905. Lamy, Amilcar F. Nationalité. Lois et conventions, doctrine, jurisprudence et répertoire. Port-au-Prince: Ompr, 1953. Noel, Ulrick. “De la nationalité et de son domaine d’application en Haiti.” Revue juridique et politique. Indépendance et coopération 25, no. 4 (1971): 633–642. Saint-Pierre, Beaubrun. “Rapport de restitution des consultations dans le cadre du Projet d’appui a la réflexion en Haïti autour du thème: Migration, Nationalité et Citoyenneté.” 2008. old.garr-haiti.org/IMG/doc/Rapport_sur_MNC.doc. 11

For a discussion of this mode of loss, see the chapter on Canada.

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth)

A02b

A05

A03a A03b A04

Birth in country (2nd generation)

A02a

A01b

Haiti

modesacq

Declaration Declaration n.a. Declaration

hai 6

n.a.

Automatic

Automatic; Declaration

Automatic

procedure

hai 4 hai 4 No provision

No provision

hai 2(3)

Const 11, hai 2(1) Const 11, hai 2(2); hai 7

articles

Person is born in Haiti to foreign citizens not belonging to the African race, or to foreign parents themselves born in Haiti and not belonging to the African race, or out of wedlock (and not recognized) to a Haitian father and a foreign mother who is not of the African race. Other conditions: renunciation of citizenship of another country.

Person is born in Haiti to parents who are unknown. Person is born in Haiti to parents who are of unknown citizenship. n.a.

Person is born in Haiti to a citizen by birth who has never renounced his/her citizenship. Person is born abroad to two citizens who have never renounced their citizenship; Person is born abroad to a father who is not a citizen and a mother who is a citizen. Declaration must be lodged within one year of reaching the age of majority. Person is born in Haiti to a father who is an alien and of the African race, or, in case of non-recognition, to a mother who is an alien and of the African race. n.a.

conditions

250 chapter 5

Transfer to other relatives Transfer from former citizen Spousal extension

A09 A10

A11

A16 A17

A14 A15

A13

A12

Filial extension Extension to other relatives Reacquisition Restricted citizenship rights

Filial transfer Adoption

A08

A07

Ordinary naturalization Socialization based acquisition Spousal transfer

A06

No provision No provision

No provision No provision

hai 11

No provision

No provision

No provision 1974 Decree, 5

hai 16

Const 12, hai 15, 22 No provision

n.a. n.a.

n.a. n.a.

Declaration

n.a.

n.a.

Naturalization (discretionary) n.a. Declaration

Naturalization (discretionary) n.a.

n.a. n.a.

Person is the female spouse of a man who acquires citizenship by naturalization. n.a. n.a.

n.a.

Person has been married to a female citizen for 2 years. Other conditions: renunciation of citizenship of another country. n.a. Person is adopted by a citizen (by declaration within 1 year after reaching the age of majority). Other conditions: renunciation of another citizenship. n.a.

Person has been resident in Haiti for 5 years. Other conditions: renunciation of citizenship of another country. n.a.

Haiti

251

short description

Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

idmode

A18

Public service

Financial assets Acquisition of citizenship for other reasons

A25

A26 A27

A24

A19 A20 A21 A22 A23

Haiti

modesacq

(Table continued)

No provision No provision

hai 17

hai 16

No provision No provision No provision No provision No provision

No provision

articles

n.a. n.a.

Automatic

Naturalization (discretionary)

n.a. n.a. n.a. n.a. n.a.

n.a.

procedure

Person has rendered important services to Haiti, has special talents that are in the interest of the country, has brought an industry, art or invention to Haiti, or has established an industry or agricultural company. Other conditions: renunciation of citizenship of another country. Person has held a civil or military function for 5 years. Unless he/she prefers to retain citizenship of another country. n.a. n.a.

n.a. n.a. n.a. n.a. n.a.

n.a.

conditions

252 chapter 5

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

L01

L08 L09

L07

L06

L05

L04

Other offences Fraudulent acquisition

short description

idmode

L02 L03

Haiti

modesloss

No provision No provision

n.a. n.a.

Lapse

n.a.

No provision

hai 26(2)–(3), 26(5)

n.a.

Lapse

n.a. n.a.

Declaration

procedure

No provision

hai 26(4)

No provision No provision

hai 29

articles

Person abandoned Haiti when it was in grave danger, took up arms against it, or actively uses a foreign citizenship. Loss can result in statelessness. n.a. n.a.

n.a.

Person assisted enemies of Haiti, or accepted remuneration from a foreign country. Loss can result in statelessness. n.a.

Person is a naturalized citizen and resides abroad. Loss can result in statelessness. n.a. n.a.

conditions

Haiti

253

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship

L10

L15

L13b L14

L13a

L12

Loss for other reasons

short description

idmode

L11

Haiti

modesloss

(Table continued)

No provision

1974 Decree, 5 hai 4

No provision

No provision

n.a.

n.a. Nullification

n.a.

n.a.

n.a.

n.a.

No provision

No provision

procedure

articles

n.a. Person acquired citizenship as a foundling, but descent from a foreign citizen -who is not of the African race- is discovered before the person reaches the age of majority. Loss can result in statelessness. n.a.

n.a.

n.a.

n.a.

n.a.

conditions

254 chapter 5

Honduras

255

Honduras Honduras, the largest country in Central America after Nicaragua, has been underpopulated since precolonial times. A characteristic feature of the country is that, due to its mountainous terrain, a powerful landholding oligarchy could not arise. This would ultimately result in ‘a more egalitarian society with a less rigid class structure than its neighbors’.1 Hecker mentions that in their earliest constitutions all five Central American Republics dated their independence from Spain in 1821.2 All of them subsequently acceded to the short-lived Central American Republic, from which Honduras withdrew on 26 October 1838. The country enacted its first Constitution, which contained several provisions on nationality, on 11 January 1839.3 The nationality legislation presently in force in Honduras is found in Title II, Chapter 1 of the 1982 Constitution,4 the 2004 Migration and Aliens Act5 – abbreviated as hon in the table – and the 1990 Decree no. 26-90-E.6 In respect of mode A02a, Honduras follows a rule adopted in many Latin American countries: citizenship is automatically acquired by birth in the country, unless the child is born to foreign diplomats. Mode A08 seems superfluous in the case of Honduras, because spouses of Honduran citizens are subject to exactly the same naturalization requirements as ordinary naturalisees. A18 in Honduras is slightly more restrictive than the corresponding mode in neighbouring country El Salvador. Citizens by birth of a Central American country (i.e. all Central American countries except Panama and Englishspeaking Belize) can acquire Honduran citizenship after one year’s residence, while no residence is required in El Salvador. For citizens of Spain and Iberoamerican countries,7 two years’ residence is required. Unless a dual 1 T. Merrill, Honduras, a country study, 3rd ed. (Washington, d.c.: Federal Research Division of the Library of Congress, 1995), xxiii. 2 Hecker, 127. For Honduras this is 15 September 1821. See also Jordana Dym in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 297. 3 Hecker, 144. 4 The Constitution, which entered into force on 20 January 1982 and was last amended by Decree 36 of 4 May 2005, is available at http://www.oas.org/dil/esp/Constitucion_de _Honduras.pdf. 5 The Migration and Aliens Act (Decreto no. 208-2003; Ley de Migración y Extranjería) entered into force on 3 March 2004 and is found at http://www.oas.org/dil/esp/Ley_de_Migraciones_y _extranjeria_Honduras.pdf. 6 Decree no. 26-90-E entered into force on 26 February 1992 and is available at http://www .poderjudicial.gob.hn/juris/Leyes/Ley%20Especial%20de%20Cartas%20de%20 Naturalizacion%20(actualizada-07).pdf. 7 For the concept of Iberoamerica, see the chapter on El Salvador.

256

chapter 5

nationality treaty exists with the country covered by mode A18, the foreign citizen is still required to renounce his/her nationality of origin. A25 applies to persons who have rendered extraordinary services to Honduras. It becomes clear from the Decree that this primarily refers to financial investment in the country. It is also important to note that Article 24 of the Constitution expressly allows dual nationality in this case by not imposing the renunciation requirement on this specific category. Honduran citizens by birth can never be deprived of their nationality (Article 28 of the Constitution). It is unclear whether this means that citizens can nonetheless voluntarily give up their citizenship. In any event, the law does not explicitly allow citizens to renounce Honduran nationality. One of the most striking features of Honduran law is the considerable attention given to the problem of statelessness. Although not providing for the acquisition of citizenship for stateless persons, three constitutional provisions specifically address this phenomenon. Article 54, on the recognition of statelesness, reads that the government of Honduras will recognize a foreigner’s statelessness if he/she is present on national territory and lacks a specific nationality. This does not apply to infants as they acquire Honduran citizenship under the Constitution.8 Article 39 provides for special residence permits for a maximum period of five years for persons requesting it for ‘legitimate reasons’, such as refugees and stateless persons.9 Article 69, finally, dealing with emergency passports, states that they can be granted to stateless persons.10 8

9

10

‘Artículo 54. Reconocimiento de la Calidad de Apátrida y Documentación. El Gobierno de Honduras por medio de la Secretaría de Estado en los Despachos de Gobernación y Justicia, reconocerá la calidad de apátrida a todo extranjero que se encuentre en el territorio nacional y carezca de nacionalidad específica. Se exceptúan los infantes, quienes adquieren la nacionalidad hondureña de acuerdo a lo prescrito en la Constitución de la República […]’. ‘Artículo 39. Permisos Especiales de Permanencia. La Dirección General de Migración y Extranjería podrá conceder permisos especiales de permanencia en el país hasta por un máximo de cinco (5) años, a extranjeros que por causas justificadas lo soliciten, tales como: […]; 2) Refugiados y apátridas […]’. ‘Artículo 69. Pasaportes de Emergencia. La Secretaría de Estado en los Despachos de Gobernación y Justicia por medio de la Dirección General de Migración y Extranjería, podrá expedir pasaportes de emergencia a […] apátridas […]’.

Honduras

257

The dual nationality treaty with Spain and its additional protocol entered into force on 23 February 1967 and 1 December 2000, respectively.11 Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 144–149. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012. 11

Vonk, 284, 296.

short description

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

idmode

A01a

A06

A05

A03a A03b A04

A02b

A02a

A01b

Honduras

modesacq

Person has been resident in Honduras for a continuous period of 3 years. Other conditions: full capacity, source of income or occupation sufficient for support (independent from parents or spouse), good behaviour, clean criminal record (both abroad and in Honduras), general knowledge of the history, geography and constitution of Honduras, renunciation of another citizenship (unless dual citizenship treaty applies), and oath of loyalty.

Naturalization (discretionary)

Const 24(3), hon 3(12), 63, 64

n.a.

n.a.

No provision

Person is an infant found in Honduras of unknown parentage. n.a. n.a.

n.a.

Person is born in Honduras. Unless parents are foreign diplomats.

Person is born abroad to a citizen by birth.

n.a.

conditions

Automatic n.a. n.a.

n.a.

Automatic

Automatic

n.a.

procedure

Const 23(4) No provision No provision

No provision

Const 23(1)

Const 23(2)

No provision

articles

258 chapter 5

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition Restricted citizenship rights Citizenship of a specific country

Cultural affinity Presumed citizens

A09 A10 A11

A19 A20

A18

A16 A17

A13 A14 A15

A12

A08

Socialization based acquisition Spousal transfer

A07

No provision No provision

Const 24(1), 24(2)

No provision No provision

No provision No provision No provision

No provision

No provision No provision No provision

Const 24(6)

No provision

n.a. n.a.

Naturalization (discretionary)

n.a. n.a.

n.a. n.a. n.a.

n.a.

Naturalization (discretionary) n.a. n.a. n.a.

n.a.

Person is a citizen by birth of a Central American country and has been resident in Honduras for 1 year, or is a citizen by birth of Spain or an Iberoamerican country and has been resident in Honduras for 2 years uninterrupted. Other conditions: see A06. n.a. n.a.

n.a. n.a.

n.a. n.a. n.a.

n.a.

n.a. n.a. n.a.

Person is married to a citizen by birth. Other conditions: see A06.

n.a.

Honduras

259

short description

Very long residence Refugees Stateless or unclear citizenship Special achievements

Public service

Financial assets Acquisition of citizenship for other reasons

Honduras

short description

Renunciation of citizenship

idmode

A21 A22 A23

A25

A26 A27

modesloss

idmode

L01

A24

Honduras

modesacq

(Table continued)

No provision

articles

No provision No provision

Const 24(4), Decree 26-90-E, 1 Const 24(5)

No provision No provision No provision

articles

n.a.

procedure

n.a. n.a.

n.a.

conditions

Person is an immigrant who belongs to a group that was admitted for scientific, agricultural or industrial reasons, and has been resident in Honduras for 1 year. Other conditions: see A06. n.a. n.a.

Person has rendered extraordinary services to Honduras.

Naturalization (discretionary) Naturalization (discretionary)

n.a. n.a. n.a.

conditions

n.a. n.a. n.a.

procedure

260 chapter 5

Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse

L08 L09

L12

L11

L10

L07

L06

L05

L04

Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

L02 L03

No provision

No provision

No provision Const 29(2), hon 65(4) No provision

Const 29(2), hon 65(3)

Const 29(1), hon 65(1) No provision

No provision

No provision No provision

n.a.

n.a.

n.a.

n.a. Withdrawal

Withdrawal

n.a.

Withdrawal

n.a.

n.a. n.a.

n.a.

n.a.

Person acquired citizenship by naturalization and has for grave reasons shown him/herself unworthy of citizenship. Loss can result in statelessness. n.a. Person acquired citizenship by naturalization based on false declarations or documents. Loss can result in statelessness. n.a.

Person is a citizen by naturalization and acquires citizenship of another country. n.a.

n.a.

n.a. n.a.

Honduras

261

short description

Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

idmode

L13a

L15

L13b L14

Honduras

modesloss

(Table continued)

No provision

n.a.

n.a. n.a.

n.a.

No provision

No provision No provision

procedure

articles

n.a.

n.a. n.a.

n.a.

conditions

262 chapter 5

Jamaica

263

Jamaica Jamaica, by far the largest of the English-speaking islands in the Caribbean, was originally settled by Spain in 1509 and was conquered by Britain in the 1650s.1 Formal possession of Jamaica was transferred from Spain to Britain in 1670 through the Treaty of Madrid, and the Colony of Jamaica for a long time included the Cayman islands as well as the Turks and Caicos islands. The country became independent on 6 August 1962.2 For the rules on Jamaican nationality law one needs to consult Chapter 2 of the 1962 Constitution and the 1962 Nationality Act.3 Mode A06 is a good example of minor differences existing between the laws of different countries that at first sight seem perfectly identical. As illustrated in the table for Jamaica, a seven-year residence period must precede an uninterrupted twelve-month residence period. It is recalled that a country such as Dominica also requires seven years’ residence. In Dominica, however, this period had to precede the moment of application, thereby reducing the period of residence that is required by one year compared to Jamaica. Jamaican nationality law, on the other hand, is less demanding in that only four out of the seven years need to be spent in Jamaica. Naturalization is therefore theoretically possible after five years’ residence in Jamaica, where the requirement is seven years in Dominica. Another difference between Jamaica and Dominica is that, in the case of the former, residence needs to be in the country; Dominica, on the other hand, has adopted a formula also found in many other former British colonies that refers to residence in the country, in the service of the government, or partly such residence and partly such service.4 It is unclear whether Jamaican law should in fact also be read this way or whether the different formulation is deliberate. Naturalization is always discretionary in Jamaica. Registration is normally by entitlement and is only discretionary under mode A01b. jam 3 clearly sets out the requirements for Commonwealth citizens and citizens of Ireland who want to acquire Jamaican nationality. Although the 1 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, 48. 2 Fransman, 1028–1033. 3 The Constitution entered into force on 25 July 1962 and was last amended by Act No. 18 of 1999. See http://pdba.georgetown.edu/constitutions/jamaica/jam62.html. The Jamaican Nationality Act (Act No. 8 of 1962) entered into force on 6 August 1962 and was last amended by Act 19 of 1999. See http://www.moj.gov.jm/sites/default/files/laws/The%20Jamaican%20 Nationality%20Act.pdf. 4 For example in T&T.

264

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Constitution, too, addresses the issue of Commonwealth citizenship (Article 9), it is less specific than the Nationality Act and the list of Commonwealth countries referred to in the Constitution has also been expanded by the Nationality Act. It follows from Article 8 of the Constitution and jam 8(1) that only citizens by naturalization or registration can be deprived of their nationality. Jamaica provides for several grounds for loss, but only L09 applies to both categories; the other modes of loss only apply to naturalized citizens. Jamaica acts in line with the relevant international standards, since the seven-year period under mode L02 is in accordance with Article 7(4) of the 1961 Convention on the Reduction of Statelessness. Upon acceding to this Convention on 1 January 2013, Jamaica also made a declaration stating that the country retains the right to deprive a person of his or her nationality in the circumstances outlined in Article 8(3) of the Convention.5 This is relevant for modes L04 and L07. It follows from jam 8(8), finally, that loss is always by withdrawal. Except for L01, which only allows renunciation of Jamaican nationality if another nationality is held, all other grounds for loss can result in statelessness. It is only stated in jam 8(4) that ‘The Minister shall not deprive a person of citizenship…unless he is satisfied that it is not conducive to the public good that that person should continue to be a citizen of Jamaica’. This formulation is identical to that of, for example, dom 10(5). Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 150–151. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 1028–1033. 5 See http://treaties.un.org/pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no =V-4&chapter=5&lang=en#EndDec.

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings Born stateless

A02b

A03a A03b

Birth in country (2nd generation)

A02a

A01b

Jamaica

modesacq

No provision No provision

No provision

Const 3B

n.a. n.a.

n.a.

Automatic

Automatic; Registration (discretionary)

n.a.

No provision

Const 3C; jam 4(1)

procedure

articles

n.a. n.a.

Person is born abroad to a citizen iure soli, iure sanguinis or by registration due to marriage to a citizen; Person is a minor and born abroad to a citizen not covered by Article 3C Constitution (see first sentence). Person is born in Jamaica. Unless born to a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. Person is deemed to be born in the country if at the time of birth the mother is a citizen residing abroad in the diplomatic service of Jamaica, or if -regardless whether she is a citizen- the mother resides abroad as the spouse of a citizen who works in the diplomatic service of Jamaica. n.a.

n.a.

conditions

Jamaica

265

Filial transfer

No provision

Const 7, 12

n.a.

Registration (entitlement)

n.a.

A09

A08

No provision

Socialization based acquisition Spousal transfer

A07

A06

A05

Establishment of No provision n.a. paternity Birth in country No provision n.a. (acquisition after birth) Ordinary naturalization jam 6, Schedule 2–3 Naturalization (discretionary)

A04

procedure

short description

idmode

articles

Jamaica

modesacq

(Table continued)

Person is the spouse of a citizen. Other conditions: oath of loyalty (exception for Commonwealth citizens and citizens of Ireland). Registration may be denied if the marriage is one of convenience to acquire citizenship, if the spouses lack intention to have a common household after marriage, or in case of conviction for certain criminal offences. n.a.

Person has been resident in Jamaica for 12 months immediately prior to the application, as well as for 4 out of 7 years predating the 12-month period. Other conditions: full capacity, good character, intent to reside in Jamaica, and oath of loyalty. Minister is explicitly allowed to waive certain requirements. n.a.

n.a.

n.a.

conditions

266 chapter 5

Restricted citizenship No provision rights Citizenship of a specific Const 9, jam 3, country Schedule 1

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship

A19 A20 A21 A22 A23

A18

No provision No provision No provision No provision No provision

jam 9A(1)

No provision No provision No provision

No provision

A17

A16

A13 A14 A15

A12

jam 4(3) No provision

Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition

A10 A11

n.a. n.a. n.a. n.a. n.a.

Naturalization (discretionary)

Naturalization (discretionary) n.a.

n.a. n.a. n.a.

n.a.

Automatic n.a.

Person is a Commonwealth citizen or a citizen of Ireland and has been resident in Jamaica, or in the service of the government, or has partly such residence and partly such service for 5 years. Minister is explicitly allowed to waive residence requirements. Other conditions: full capacity. n.a. n.a. n.a. n.a. n.a.

Person is a former citizen by birth, descent or adoption who previously renounced citizenship. n.a.

n.a. n.a. n.a.

n.a.

Person is a minor who is adopted by a citizen. n.a.

Jamaica

267

short description

Special achievements Public service Financial assets Acquisition of citizenship for other reasons

idmode

A24 A25 A26 A27

Renunciation of citizenship

Residence abroad

Service in foreign army No provision

L01

L02

L03

Declaration

procedure

n.a. n.a. n.a. n.a.

procedure

n.a.

Const 11b, jam 8(3) Withdrawal

Const 11c, jam 7

short description

articles

No provision No provision No provision No provision

articles

idmode

modesloss Jamaica

Jamaica

modesacq

(Table continued)

Person is of full capacity and is a citizen of another country. Renunciation only takes effect after registration by the authorities. Person acquired citizenship by naturalization and has been permanently and continuously resident abroad for 7 years. Exception if person was in the service of Jamaica, annually registered at the Jamaican consulate with the intention to retain citizenship, or gave notice in writing to the Minister of the intention to retain citizenship. Loss can result in statelessness. n.a.

conditions

n.a. n.a. n.a. n.a.

conditions

268 chapter 5

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

Other offences

Fraudulent acquisition

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent

L05

L08

L09

L10

L11

L07

L06

Other service for foreign country

L04

Withdrawal

No provision

No provision

n.a.

n.a.

Const 11b, jam 8(1) Withdrawal

Const 11b, jam 8(2)c

Withdrawal

n.a.

No provision

Const 11b, jam 8(2)a

n.a.

Withdrawal

No provision

Const 11b, jam 8(2)b

n.a.

Person acquired citizenship by naturalization and has been disloyal (in act or speech) towards Her Majesty. Loss can result in statelessness. Person acquired citizenship by naturalization and has within 5 years of acquisition been sentenced in any country to imprisonment for at least 12 months. Loss can result in statelessness. Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness. n.a.

n.a.

Person acquired citizenship by naturalization and has in any way assisted the enemy in a war in which Jamaica was engaged. Loss can result in statelessness. n.a.

Jamaica

269

Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship Loss for other reasons

L12

L15

L13b L14

L13a

short description

idmode

modesloss Jamaica

(Table continued)

No provision

No provision No provision

No provision

No provision

articles

n.a.

n.a. n.a.

n.a.

n.a.

procedure

n.a.

n.a. n.a.

n.a.

n.a.

conditions

270 chapter 5

Mexico

271

Mexico What is presently the territory of Mexico constituted the core of the viceroyalty of New Spain as created in the 1530s. On this viceroyalty the Cambridge History of Latin America writes: On the eve of the struggle for independence from Spain [it] constituted a vast area extending from the Caribbean to the Pacific and from the borders of Guatemala and Chiapas to the huge Eastern and Western Internal Provinces, including the territory later incorporated as the south-western United States.1 Mexico declared its independence from Spain on 16 September 1810 (known as El Grito de Dolores),2 and Articles 13–15 of the Mexican Constitution of 22 October 1814 were the first to lay down the grounds for acquisition and loss of nationality.3 Nowadays, Chapter 2 of the 1917 Mexican Constitution and the 1998 Nationality Act are the two principal legal documents pertaining to Mexican nationality law.4 The 1998 Act encompassed a rather far-reaching reform that has been analyzed by a number of studies listed in the bibliography. The law was last amended on 23 April 2012. Mexico is a ius soli country par excellence by providing that everyone born in Mexico automatically acquires Mexican citizenship, irrespective of the parents’ nationality or residence status. This is particularly relevant for the substantial number of Central Americans living in Mexico, many of whom fled their respective countries during the internal conflicts of the 1980s.5

1 L. Bethell, ed. The Cambridge History of Latin America, 51. New Spain, moreover, was by far the richest Spanish colony, and Mexico City the largest city in North and South America. 2 T. Merrill and R. Miró, Mexico, a country study, 4th ed. (Washington, d.c.: Federal Research Division of the Library of Congress, 1997), xxiii. See also Alfredo Ávila and Erika Pani in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 280. 3 Hecker, 165; Arellano García, 210. 4 The Constitution, which entered into force on 5 February 1917 and was last amended on 8 October 2013, is available at http://www.diputados.gob.mx/LeyesBiblio/pdf/1.pdf. The Nationality Act (Ley de Nacionalidad) entered into force on 23 January 1998 and was last amended on 23 April 2010. See http://www.diputados.gob.mx/LeyesBiblio/pdf/53.pdf. Pereznieto (at 58) argues in his commentary that also the Reglamento para la Expedición de Certificados de Nacionalidad Mexicana of 1972 is still in force, since it was not revoked by any of the subsequent Nationality Acts. 5 Becerra Ramírez, 319.

272

chapter 5

Acquisition iure sanguinis, however, is limited to the first generation born abroad.6 The Mexican naturalization procedure is discretionary, considering that mex 25(3) states that naturalization may be refused ‘cuando no sea conveniente a juicio de la Secretaría [de Relaciones Exteriores]’. As regards the loss of nationality, Mexican law states that citizens by birth can never be deprived of their nationality (mex 37A). In fact, the most important legal change effected by the 1998 reform was that citizens by birth would no longer lose their Mexican nationality if they took up another nationality.7 By contrast, naturalized citizens can lose their Mexican nationality in case of prolonged residence abroad, naturalization in another country, and behaviour that hints at allegiance to a foreign State.8 ‘To be clear’, Manuel Becerra Ramírez writes, ‘Mexicans by naturalization are prohibited from holding dual nationality’.9 The fact that loss of nationality for naturalized citizens can result in statelessness is explicitly confirmed by Mexican doctrine.10 At the same time, the law is clear that loss of nationality by a naturalized citizen only affects the person involved and not also the spouse and/or children (mex 29). Some acts, finally, that would have resulted in loss of nationality in many other countries only result in loss of citizenship rights under Mexican law – for example, rendering services to a foreign State without the government’s permission (Article 37C of the Constitition). Whether or not Mexican nationality can be renounced is unclear from the law, since it is only stated in mex 37A that ‘No Mexican by birth shall be deprived of his or her nationality’. Legal doctrine refers to this as the ‘nonforfeiture’ or irrenunciabilidad of Mexican nationality.11 Different sources, however, interpret this Article as prohibiting the voluntary renunciation of Mexican nationality. This rule, which violates udhr 15 and AmCHR 20(3), should be seen from the perspective of Mexico’s dual nationality policy after 1998. Worried that other countries could possibly require Mexicans to renounce their nationality upon naturalization, Mexico preemptively decided to make 6

7 8 9 10 11

Gender equality as regards the transmission of Mexican nationality to children born abroad was introduced through a constitutional amendment from 1934. See Burgoa, 105; Arellano, 251. See in detail Pereznieto, 49 ff. See critically on this differentiation between citizens by birth and by naturalization, Pereznieto 71 ff. Becerra Ramírez, 336. González Martín (2000), 889. Becerra Ramírez, 323.

Mexico

273

nationality non-renounceable.12 If this interpretation is correct, it is better to make this non-renounceability more explicit. Guatemalan law, for example, reads: ‘No Guatemalan by birth shall be deprived of his or her nationality; once it has been acquired it cannot be renounced…’.13 Bibliography Arellano García, Carlos. Derecho internacional privado. 12th ed. México, d.f.: Editorial Porrúa, 1998, p. 175–329 [Pays great attention to both the ‘antecedentes de la nacionalidad mexicana’ and the law of 1998.] Arredondo Galván, Francisco Xavier. Personas físicas nacionales y extranjeras. México, d.f.: Colegio de notarios del distrito federal, 2002. Becerra Ramírez, Manuel. “Nationality in Mexico.” In From Migrants to Citizens. Membership in a Changing World, edited by T. Alexander Aleinikoff and Douglas Klusmeyer. 312–341. Washington d.c.: Carnegie Endowment for International Peace, 2000. Burgoa, Ignacio. Derecho Constitucional Mexicano. Mexico: Editorial Porrúa, 2006, p. 95–135. Climent Bonilla, Ma Margarita. Nacionalidad, estatalidad y ciudadanía. México, d.f.: Editorial Porrúa Hermanos, 2002. [255 p; detailed analysis of both past and (then) present nationality law in Mexico; also contains all historically important texts for Mexican nationality law.] Fitzgerald, David. “Nationality and Migration in Modern Mexico.” Journal of Ethnic and Migration Studies 31, no. 1 (2005): 171–191. Fuentes Navarro, Daniel Eugenio. Derecho internacional: nacionalidad y protección de la persona en el extranjero. México, d.f.: Cámara de Diputados Miguel Ángel Porrúa, 2008. [PhD thesis defended in Spain; focus is on nationality in relation to diplomatic protection, but chapter 2 analyses Mexican nationality law; one of the few Spanish books that refer to publications in English; contains a useful bibliography.] 12 http://www.diplomaticosescritores.org/obras/NacionalidadCiudadan%C3%ADaVotoen elExtranjero.pdf Referring to a remark by Miguel Ángel González Félix, Hubbard Urrea observes: ‘Si se deja la posibilidad legal de renunciar, nada impediría al otro país (y todos sabemos a cuál se refería [i.e. the United States]) establecer como requisito previo para la naturalización la renuncia a la nacionalidad de origen, con lo cual volveríamos a caer en el problema que tratábamos de combatir, es decir, el temor de los mexicanos a perder su nacionalidad al adquirir otra’. 13 See gua 3: ‘A ningún guatemalteco de origen puede privársele de su nacionalidad, una vez adquirida es irrenunciable…’.

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García Moreno, Víctor Carlos. “Irrenunciabilidad y doble nacionalidad.” Responsa (México) 1, no. 2 (1995): 12–14. ——. “Reformas Constitucionales sobre la Irrenunciabilidad de la Nacionalidad Mexicana.” Lex 3, no. 21 (1997): 29–32. Gómez Palacio Gutiérrez Zamora, Ignacio. La pérdida de la nacionalidad mexicana. México, d.f.: unam, 1966. [129 p; addresses the same issue as Ruiz Obregón but puts a stronger emphasis on administrative procedures in relation to loss of nationality.] Gómez-Robledo Verduzco, Alonso. Temas selectos de derecho internacional. 4th ed. México, d.f.: unam, 2003. González Martín, Nuria. Régimen jurídico de la nacionalidad en México. México, d.f.: unam, 1999. [Very useful book that inter alia analyses in detail the 1998 reform.] ——. “Ley de Nacionalidad.” Boletín Mexicano de Derecho Comparado 33, no. 98 (2000): 873–894. http://www.ejournal.unam.mx/bmd/bolmex098/BMD09811.pdf. ——. “Régimen jurídico de la nacionalidad en México.” In Lecciones de derecho internacional privado mexicano. Parte general, edited by Nuria González Martín. 445–533. México, d.f.: Editorial Porrúa, 2007. González Oropeza, Manuel. “La Triple Nacionalidad de los Miembros de las Comunidades Indígenas en México.” Lex 1, no. 1 (1995): 35–36. González Rebeil, Jaime. Nacionalidad y naturalización. Problemas en derecho mexicano. México, d.f., 1955. [117 p; deals with naturalization under the 1917 Constitution and the 1934 Nationality Act.] Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 165–175. Hernández Campos, Gabriel. “El procedimiento de naturalización conforme a la nueva Ley de Nacionalidad.” Revista Jurídica de la Escuela Libre de Derecho de Puebla A.C. 1, no. 1 (1998): 81–96. Instituto de Investigaciones Legislativas. La doble nacionalidad: memoria del coloquio. Palacio Legislativo, 8–9 de junio, 1995. México, d.f.: Cámara de Diputados, 1995. Instituto Nacional de Administración Pública. Doble nacionalidad: aspectos jurídicos y administrativos. México: Instituto Nacional de Administración Pública, 1998. [Very useful book that goes into the effects of the acceptance of dual nationality after 1998; adopts a question-and-answer approach and can be read in conjunction with La doble nacionalidad: memoria del coloquio (1995); both books contain many contributions by the same authors.] Itzigsohn, José. “Migration and Transnational Citizenship in Latin America: The Cases of Mexico and the Dominican Republic.” In Dual Citizenship in Global Perspective, From Unitary to Multiple Citizenship, edited by Peter Kivisto and Thomas Faist. 113–134. New York: Palgrave Macmillan, 2007. López Meza, Judith Selene. La documentación a extranjeros. México, d.f.: Editorial Porrúa, 2007.

Mexico

275

Mansilla y Mejía, María Elena. “Una nueva ley de nacionalidad.” Responsa 3, no. 13 (1998): 13–14. Mariscal y Abascal, Antonio G. La pérdida de la nacionalidad en nuestro derecho. México, d.f.: Imprenta “Claret,” 1939. [Short book that discusses the loss of Mexican nationality under the 1917 Constitution and the 1934 Nationality Act.] Morán Zaldívar, Manuel. El extranjero y su nacionalidad. México d.f., 1954. [93 p; perhaps not really relevant to any audience due to the overly broad scope for such a short work; chapter 6 is concerned with Mexican nationality.] Pereznieto Castro, Leonel. Derecho internacional privado. Parte general. 9th ed. Mexico City: Oxford University Press, 2011, p. 43–78. Renovales Vallina, Wenceslao. “Renuncia a la nacionalidad.” La Barra, no. 25 (2000): 7–9. Ruiz Obregón, Francisco G. La pérdida de la nacionalidad en nuestro derecho constitucional. México: unam, 1958. [89 p; contains an historical overview of loss of Mexican nationality in Chapter 3.] Secretaria de estado y del despacho de relaciones exteriores. Italia. Convención sobre nacionalidad. Mexico, 1892. Serrano Migallón, Fernando. “La doble nacionalidad en el derecho mexicana.” In El derecho en México. Derecho civil a 200 anos del código de Napoléon. 1323–1336. México, d.f.: Editorial Porrúa, 2005. ——. “El concepto de la nacionalidad en las constituciones mexicanas. Apertura e introspección.” In Estudios jurídicos en homenaje a Marta Morineau, edited by Nuria Gónzalez Martín. 567–588. México, d.f.: unam, 2006. Trigueros Gaisman, Laura. “Notas sobre los antecedentes de la nacionalidad mexicana.” Alegatos, no. 51 (2002): 259–268. ——. “La doble nacionalidad en el derecho mexicano.” Jurídica 26 (1996): 581–602. http://www.juridicas.unam.mx/publica/librev/rev/jurid/cont/26/pr/pr34.pdf. Trigueros Saravia, Eduardo. La nacionalidad mexicana. Notas para el estudio del derecho internacional privado. México, d.f.: Jus, revista de derecho y ciencias sociales, 1940. [167 p; comprehensive analysis of Mexican nationality law, including a chapter on issues relating to conflict of laws; book is quoted by many other publications from that period.] Valdés García, Leonel. La nacionalidad mexicana y los medios de probarla. México, d.f., 1964. [105 p; analyses the problem of deficient laws regarding the matter of proof of nationality in the period from Mexican independence to the end of the Mexican revolution (see page 11).]

A06

A05

A03b A04

A03a

A02b

A02a

Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation) Birth in country (3rd generation) Foundlings

A01a

A01b

short description

idmode

modesacq Mexico

Person has been resident in Mexico for 5 years immediately prior to the application. Other conditions: honest means of subsistence, renunciation of citizenship of another country (only after citizenship has been granted), knowledge of Spanish language and Mexican

Naturalization (discretionary)

Const 30B(1), 34, mex 17, 19, 25

n.a.

n.a.

No provision

Person is a child found in Mexico of unknown parentage. Child will be presumed to have a Mexican father and mother. n.a. n.a.

n.a.

Person is born in Mexico.

Person is born abroad to a citizen otherwise than by descent.

n.a.

conditions

n.a. n.a.

Automatic

n.a.

Automatic

Automatic

n.a.

procedure

No provision No provision

mex 7

No provision

Const 30A(2), 30A(3) Const 30A(1)

No provision

articles

276 chapter 5

Transfer to other relatives Transfer from former citizen Spousal extension

Filial extension

A11

A13

A14

A12

Filial transfer Adoption

No provision

Const 30B(2), mex 20(2)

No provision

No provision

No provision mex 20(3)

Socialization based No provision acquisition Spousal transfer Const 30B(2), mex 20(2)

A09 A10

A08

A07

n.a.

Naturalization (discretionary)

n.a.

n.a.

n.a. Naturalization (discretionary)

Naturalization (discretionary)

n.a.

Person is the spouse of a citizen and has been resident in Mexico, with common household, for 2 years immediately prior to the application. Residence requirement is waived if the citizen works abroad in the public service of Mexico. n.a.

n.a.

Person is the spouse of a citizen and has been resident in Mexico, with common household, for 2 years immediately prior to the application. Residence requirement is waived if citizen works abroad in public service of Mexico. n.a. Person is an adopted minor or a minor descendant to the second degree, the citizen-parent exercises parental authority, and the person has been resident in Mexico for 1 year prior to the application. Person can apply him/herself within 1 year after reaching the age of majority if the citizen exercising parental authority did not do so while person was a minor. n.a.

history, integration in the national culture, no prison sentence for a criminal act committed in Mexico or abroad, and oath of loyalty. n.a.

Mexico

277

A25 A26

A24

A19 A20 A21 A22 A23

A18

A17

Public service Financial assets

Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

Extension to other relatives Reacquisition

A15

A16

short description

idmode

modesacq Mexico

(Table continued)

No provision No provision

mex 20(1)d

No provision No provision No provision No provision No provision

No provision

No provision

mex 20(1)c

No provision

articles

n.a. n.a.

Naturalization (discretionary)

n.a. n.a. n.a. n.a. n.a.

n.a.

n.a.

Naturalization (discretionary)

n.a.

procedure

Person has been resident in Mexico for 2 years and has been beneficial to the country (e.g. in the fields of culture, sports). Other conditions: see A06. n.a. n.a.

n.a. n.a. n.a. n.a. n.a.

n.a.

Person has been resident in Mexico for 2 years and is a citizen of a country in Latin America or the Iberian peninsula. Other conditions: see A06. n.a.

n.a.

conditions

278 chapter 5

Acquisition of citizenship for other reasons

L07

L06

L05

L04

L03

Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

Renunciation of citizenship Residence abroad

L01

L02

short description

idmode

modesloss Mexico

A27

n.a.

n.a.

No provision

No provision

Withdrawal

n.a.

n.a.

Withdrawal

n.a.

procedure

Naturalization (discretionary)

Const 37B(1)

No provision

No provision

Const 37B(2)

No provision

articles

mex 20(1)a, 20(1)b

n.a.

Person is a citizen by naturalization and voluntarily acquires citizenship of another country. n.a.

n.a.

Person is a citizen by naturalization and has been resident abroad for 5 years uninterrupted. Loss can result in statelessness. n.a.

n.a.

conditions

Person has been resident in Mexico for 2 years and is a direct descendant of a citizen by birth (exemption from residence requirement is possible under certain circumstances), or has Mexican children who are citizens by birth. Other conditions: see A06.

Mexico

279

Other offences

Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/paternity Adoption Establishment foreign citizenship Loss for other reasons

L08

L09

L15

L13b L14

L13a

L12

L11

L10

short description

idmode

modesloss Mexico

(Table continued)

No provision

mex 30 No provision

No provision

mex 29

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

No provision

mex 29

n.a.

Withdrawal

procedure

No provision

Const 37B(1)

articles

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

Person is a citizen by naturalization and presents himself as a foreigner, uses a foreign passport, or accepts or uses noble titles that indicate submission to a foreign country. Loss can result in statelessness. n.a.

conditions

280 chapter 5

Nicaragua

281

Nicaragua Nicaragua’s existence as a Spanish colony from 1522 resembles that of El Salvador: ‘Spain showed little interest in Nicaragua throughout this [early colonial] period, mostly because it was more interested in exploiting the vast riches found in Mexico and Peru’.1 Having declared independence from Spain on 15 September 1821, Nicaragua was the first of the five countries forming the Central American Republic to enact its own Constitution on 8 April 1826, Articles 17–24 of which laid down the rules on the acquisition and loss of Nicaraguan nationality.2 Upon Nicaragua’s secession from the federation on 30 April 1838, a new Constitution was promulgated on 12 November of that same year. Nationality law is currently covered in Title III of the 1987 Constitution and the 1992 Nationality Act.3 The law distinguishes between citizens by birth (nacionales) and by naturalization (naturalizados). Any citizen who acquired citizenship iure soli or iure sanguinis, as well as citizens of Central American countries opting for Nicaraguan citizenship (A18) and persons being granted citizenship after having performed extraordinary services to Nicaragua (A24) are considered nacionales.4 Mode A05 is a ground for acquisition hardly found in the Western Hemisphere. While most countries have automatic acquisition iure soli for anyone born on the territory, an exception is usually made for children born in the country to foreign diplomats. Nicaragua is a rare example of a country granting such children an option right to its nationality. Unlike Honduras, for example, Nicaragua simply refers to centroamericanos rather than citizens of the former Federal Republic of Central America (i.e. all Central American countries except Panama and English-speaking Belize). Substantively this comes down to the same group of countries, however. Centroamericanos are not subject to the four-year residence requirement in Nicaragua, and they can become citizens by declaration. A less generous form 1 T. Merrill, Nicaragua, a country study, 3rd ed. (Washington, d.c.: Federal Research Division of the Library of Congress, 1994), 8. 2 Hecker, 176. 3 The Constitution entered into force on 9 January 1987 and was last amended by Law no. 527 of 8 April 2005. See http://pdba.georgetown.edu/constitutions/nica/nica05.html. The Nationality Act (Ley de Nacionalidad) entered into force on 30 June 1992 and is available at http://legislacion.asamblea.gob.ni/Normaweb.nsf/($All)/6E59DFA7C518534B062570A100577 C30?OpenDocument. 4 It admittedly does not become wholly clear from Article 17 of the Constitution that citizens of Central American countries who become Nicaraguan by declaration are subsequently considered nacionales.

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of facilitation exists, in the form of naturalization, for citizens of Spain and countries applying the principle of reciprocity. They are required to reside in Nicaragua for two years instead of the normal four years. The A18 group is technically subject to the renunciation requirement, but this certainly does not apply in the case of Spain. The dual nationality treaty with Spain and its additional protocol entered into force on 25 January 1962 and 18 March 1999, respectively.5 Article 20 of the Constitution and nic 16 state that citizens by birth can never be deprived of their citizenship. These legal instruments seem to contradict each other, however, when it concerns loss due to acquisition of a foreign citizenship. Where Article 20 reads that Nicaraguan citizenship will not be lost in that case, nic 15 does provide for loss when citizens by birth voluntarily naturalize abroad. The law does not further clarify how ‘voluntarily’ should be interpreted. Nicaraguan citizens by naturalization who subsequently naturalize abroad will always lose their Nicaraguan citizenship. Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 176–181. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012.

5 Vonk, 284, 296.

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings

Born stateless Establishment of paternity Birth in country (acquisition after birth)

A02b

A03b A04

A05

A03a

Birth in country (2nd generation)

A02a

A01b

Nicaragua

modesacq

Const 16(1), nic 3(1), 25

Const 16(4), nic 3(4) No provision No provision

No provision

Const 16(1), nic 3(1), 25

Const 16(2), nic 3(2) Const 16(2), nic 3(2)

articles

Declaration

n.a. n.a.

Automatic

n.a.

Automatic

Automatic

Automatic

procedure

Person is born in Nicaragua to foreign diplomats, foreign employees of international organizations, or those sent by their national governments to work in Nicaragua. Dual nationals have to ‘reaffirm’ (ratificar) or renounce their Nicaraguan citizenship within 2 years after reaching the age of majority or being emancipated.

n.a. n.a.

Person is an infant found in Nicaragua of unknown parentage.

Person is born abroad to a citizen. Dual nationals have to ‘reaffirm’ (ratificar) or renounce their Nicaraguan citizenship within 2 years after reaching the age of majority or being emancipated. Person is born in Nicaragua. Unless born to foreign diplomats, foreign employees of international organizations, or those sent by their national governments to work in Nicaragua. Dual nationals have to ‘reaffirm’ (ratificar) or renounce their Nicaraguan citizenship within 2 years after reaching the age of majority or being emancipated. n.a.

Person is born in Nicaragua to a citizen.

conditions

Nicaragua

283

A13

A12

A09 A10 A11

Spousal extension

Filial transfer Adoption Transfer to other relatives Transfer from former citizen

Socialization based No provision acquisition Spousal transfer nic 8(b)

A07

A08

Ordinary naturalization

A06

No provision

Const 16(3), nic 3(3), 25

No provision No provision No provision

Const 19, nic 7

short description

idmode

articles

Nicaragua

modesacq

(Table continued)

conditions

n.a.

Declaration

Naturalization (discretionary) n.a. n.a. n.a.

Person is born abroad to a parent who once held citizenship and requests for citizenship upon reaching the age of majority or upon emancipation. Dual nationals have to ‘reaffirm’ (ratificar) or renounce their Nicaraguan citizenship within 2 years after reaching the age of majority or being emancipated. n.a.

Person has been permanently resident in Nicaragua for 2 years as the spouse of a citizen. Other conditions: see A06. n.a. n.a. n.a.

Naturalization Person has been resident in Nicaragua for a continuous period of 4 years (discretionary) since being granted a permanent resident permit. Other conditions: renunciation of citizenship of another country, honest means of subsistence, good behaviour and clean criminal record, sufficient knowledge of the Spanish language and of the geography, history, and political and social structure of the country. n.a. n.a.

procedure

284 chapter 5

A19

A18

A17

Cultural affinity

Restricted citizenship rights Citizenship of a specific country

Extension to other relatives Reacquisition

A15

A16

Filial extension

A14

No provision

Const 17, nic 4; nic 8(a)

No provision

nic 20, 22; nic 21, 22

No provision

nic 10

Declaration; Person is a citizen by birth of a Central American country and is resident Naturalization in Nicaragua. No requirement to renounce the other citizenship; (discretionary) Person is a Spanish citizen by birth or a citizen of a country that applies the principle of reciprocity, and has been permanently resident in Nicaragua for 2 years. Other conditions: see A06 (including renunciation requirement). n.a. n.a.

Declaration; Person was a citizen by birth and renounces all other citizenships that Naturalization he/she may have. Reacquisition is only possible once; (discretionary) Person was a citizen by naturalization and lost citizenship under Mode L08 (application for reacquisition only possible 10 years after having served the sentence), or Modes L01 or L05 (application for reacquisition only possible 5 years after having lost citizenship). Reacquisition is only possible once. n.a. n.a.

Naturalization Person is a minor whose parent acquired citizenship by naturalization (discretionary) and has parental authority over the child. Child must choose between Nicaraguan citizenship and the citizenship of origin upon reaching the age of majority or upon emancipation. n.a. n.a.

Nicaragua

285

Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements Public service Financial assets

A20 A21 A22 A23

A27

A25 A26

Acquisition of citizenship for other reasons

short description

idmode

A24

Nicaragua

modesacq

(Table continued)

Naturalization (discretionary) n.a. Naturalization (discretionary)

n.a.

No provision

n.a. n.a. n.a. n.a.

procedure

Const 18, nic 5 No provision nic 9

No provision No provision No provision No provision

articles

Person has performed extraordinary services to Nicaragua. Under this mode the person becomes a citizen by birth. n.a. Person has been permanently resident in Nicaragua for 2 years, and has established an industry or exercises an activity that contributes to the economic, social or cultural development of the country. Other conditions: see A06. n.a.

n.a. n.a. n.a. n.a.

conditions

286 chapter 5

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship

L01

L07

L06

L05

L04

Const 20, nic 15, 17(1)

No provision

No provision No provision

nic 17(2)

articles

Non-renunciation No provision foreign citizenship (acquisition by birth) Disloyalty or nic 17(4)–(5) treason

short description

idmode

L02 L03

Nicaragua

modesloss

Withdrawal

n.a.

Withdrawal

n.a.

n.a. n.a.

Declaration

procedure

Person is a citizen by naturalization and fails to defend the country in case of foreign agression, or is convicted for treason. Loss can result in statelessness.

Person is a citizen by birth who voluntarily acquires citizenship of another country. Unless that country is a Central American country or one with which a dual nationality treaty has been concluded. Citizens by naturalization who naturalize in another country always lose Nicaraguan citizenship. n.a.

n.a.

n.a. n.a.

No other conditions. Loss can result in statelessness.

conditions

Nicaragua

287

short description

Other offences

Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

idmode

L08

L09

L15

L13b L14

L13a

L12

L11

L10

Nicaragua

modesloss

(Table continued)

No provision

n.a.

n.a. Lapse

n.a.

No provision

No provision Const 16(4)

n.a.

No provision

n.a.

n.a.

No provision

No provision

n.a.

Withdrawal

procedure

No provision

nic 17(3)

articles

n.a. Person acquired citizenship as a foundling but the filiation subsequently established has the effect that citizenship of another country is acquired. n.a.

n.a.

n.a.

n.a.

n.a.

Person is a citizen by naturalization and repeats a delict which is punished with a prison sentence of at least 3 years. Loss can result in statelessness. n.a.

conditions

288 chapter 5

Panama

289

Panama Panama had traditionally been a province of the Spanish viceroyalty of New Granada before becoming part of the republic of ‘Gran Colombia’ (Great Columbia) after the Latin American struggle for independence.1 The country has only been independent from Colombia since 3 November 1903, and it legislated on the acquisition and loss of Panamanian nationality in the Constitution of 1904.2 The rules currently in force are found in Title II of the 1972 Constitution and Law no. 7 of 1980, which further clarifies Article 12 of the Constitution.3 Acquisition iure soli is not subject to any exceptions under Panamanian law. Anyone born in the country therefore automatically acquires citizenship. The nationality law limits the transmission of nationality to the first generation born abroad. Persons born abroad to Panamanian parents must also establish residence in the country, which in the case of birth to naturalized Panamanian parents must even take place within one year after reaching the age of majority. Citizens of Spain and Latin American countries can have facilitated access depending on whether their country of origin grants facilitated access to Panamanians naturalizing there.4 As Spanish law provides for this kind of facilitated access,5 Spanish nationals naturalizing in Panama are subject to the same naturalization requirements as are Panamanians naturalizing in Spain. It is therefore irrelevant that no dual nationality treaty has ever been concluded between the two countries. Similarly, citizens from a Latin American country, e.g. neighbouring country Colombia, can naturalize in Panama and become dual citizens. It was seen in the chapter on Colombia, that since 1991 Colombian nationality is no 1 L. Bethell, ed. The Cambridge History of Latin America, 471. Panama did issue a declaration of independence on 28 November 1821, but it decided simultaneously that the territory would belong to New Granada. See Martínez Garnica in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 180. 2 Hecker, 182. 3 The Constitution entered into force on 11 October 1972 and was last amended by Acto Legislativo no. 1 from 2004. See http://www.asamblea.gob.pa/main/LinkClick.aspx? fileticket=fDgmRvYW8cY%3D&tabid=123. Law no. 7 (Ley no. 7; Desarrollo del Artículo 12 de la Constitución) entered into force on 14 March 1980. See http://www.refworld.org/ docid/3db96ef34.html. 4 For the concept of ‘Latin America’, see the chapter on El Salvador. 5 See mode A18 in M. Vink, O. Vonk, and I. Honohan, “Modes of Acquisition of Citizenship in Europe.”

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longer lost upon naturalization abroad (L05). And while Panama still requires non-privileged naturalisees to give up their nationality of origin under mode A06, citizens of Colombia are exempt from this requirement under mode A18. This is because Panamanian law allows citizens of Spain and Latin American countries to naturalize if they fulfil the same conditions as required in those countries for the naturalization of Panamanian citizens (A18), and Colombian law no longer has the renunciation requirement as a condition for naturalization. In short, just as one can become a Spanish-Panamanian national without there being a dual nationality treaty, one can also become a ColombianPanamanian national despite the lack of any concrete dual nationality arrangements. Panama has a Reforestation Program, Investor Program, and Small Business Investor Program.6 These ‘investment programs’ allow foreigners to acquire Panamanian citizenship through financial investment in combination with ‘premier residence’.7 More concretely, compliance with the financial requirement under the respective programs results in a residence permit. Having established residence in the country, the investor can subsequently acquire citizenship after meeting the normal residence and other requirements under Panamanian law. It is stressed that these rules are not laid down in the Panamanian nationality law but in the respective investment programs. Nationality can be renounced without holding another citizenship (la renuncia expresa); and nationality is lost after entering the service of another country or acquiring the citizenship of another country (la renuncia tácita). All these grounds for loss can result in statelessness, with the obvious exception of loss due to acquisition of another citizenship. Bibliography Grimaldo Carles, Rodrigo. “La nacionalidad en la Constitución panameña de 1946. Estudio crítico y comparado con el derecho chileno.” Tesis (licenciatura en ciencias jurídicas y sociales), Universidad de Chile, 1950. [83 p; Panamanian nationality law is discussed in juxtaposition to Chilean law; published and written in Chile but the author is from Panama (at 37).]

6 J. Dzankic, “The pros and cons of ius pecuniae: investor citizenship in comparative ­perspective,” 4–5. 7 This refers to residence granted on grounds of the applicant’s investment. Ibid., 1.

Panama

291

Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 182–186. Reyes de Vásquez, Marisol M. “Notas sobre la nacionalidad por naturalización y sobre el problema del reconocimiento de nacionales por origen a los hijos de extranjeros en Panamá.” Anuario de derecho – Universidad de Panamá 5, no. 5 (1961–1962): 271–277.

A06

A05

A03a A03b A04

A02b

A02a

n.a.

No provision

Const 10(1), Naturalization 12, pan 1, 4, 8 (discretionary)

n.a. n.a. n.a.

n.a.

Automatic

Automatic; Declaration

n.a.

procedure

No provision No provision No provision

No provision

Const 9(1)

Descent (born in No provision the country) Descent (born Const 9(2); abroad) Const 9(3)

A01a

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

short description articles

idmode

A01b

Panama

modesacq

Person has been resident in Panama for a continuous period of 5 years (time spent during minority is fully counted). Other conditions:

n.a.

n.a. n.a. n.a.

n.a.

Person is born abroad to a citizen by birth and establishes residence in Panama; Person is born abroad to a citizen by naturalization and establishes residence in Panama (by declaration within 1 year of reaching the age of majority). Person is born in Panama.

n.a.

conditions

292 chapter 5

Filial transfer Adoption

Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition Restricted citizenship rights

A09 A10

A11

A16 A17

A14 A15

A13

A12

A08

Socialization based acquisition Spousal transfer

A07

No provision No provision

No provision No provision

No provision

No provision

No provision

No provision Const 11

Const 10(2)

No provision

n.a. n.a.

n.a. n.a.

n.a.

n.a.

Naturalization (discretionary) n.a. Registration (entitlement) n.a.

n.a.

n.a. n.a.

n.a. n.a.

n.a.

n.a.

Person is the spouse of a citizen and has been resident in Panama for 3 years uninterrupted. Other conditions: see A06. n.a. Person is born abroad and adopted by Panamanian citizens before the age of 7. n.a.

renunciation of citizenship of another country, proficiency in Spanish, basic knowledge of the geography, history and political organization of Panama, and oath of loyalty. Naturalization can be denied for reasons of morality, safety, health, and fysical or mental incapacity. n.a.

Panama

293

Citizenship of a specific country

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements Public service Financial assets Acquisition of citizenship for other reasons

A18

A19 A20

A25 A26 A27

A24

A22 A23

A21

short description articles

idmode

No provision No provision Const 10(2)

No provision

No provision No provision

No provision

No provision No provision

Const 10(3)

Panama

modesacq

(Table continued)

n.a. n.a. Naturalization (discretionary)

n.a.

n.a. n.a.

n.a.

n.a. n.a.

Naturalization (discretionary)

procedure

n.a. n.a. Person is the father or mother, together with a Panamanian citizen, of children born in Panama and has been resident in Panama for 3 years uninterrupted. Other conditions: see A06.

n.a.

n.a. n.a.

n.a.

Person is a citizen by birth of Spain or a Latin American country and fulfills the same conditions as required in those countries for the naturalization of Panamanian citizens. n.a. n.a.

conditions

294 chapter 5

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Nonrenunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition

L01

L08 L09

L07

L06

L05

L04

L03

L02

short description articles

idmode

No provision No provision

No provision n.a. n.a.

n.a.

n.a.

No provision

Const 13

Declaration (tacitly) Declaration (tacitly)

n.a.

n.a.

Declaration

procedure

Const 13

No provision

No provision

Const 13

Panama

modesloss

n.a. n.a.

n.a.

n.a.

Person enters the service of an enemy country. Loss can result in statelessness. Person acquires citizenship of another country.

n.a.

n.a.

No other conditions. Loss can result in statelessness.

conditions

Panama

295

L15

L13b L14

L13a

L12

L11

Nonrenunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

No provision

No provision No provision

No provision

No provision

No provision

No provision

short description articles

idmode

L10

Panama

modesloss

(Table continued)

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

procedure

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

conditions

296 chapter 5

Paraguay

297

Paraguay Hecker remarks that Paraguay declared its independence from Spain and Argentina on 14 May 1811.1 The explicit mention of Argentina tells us something about that country’s dominance over Paraguay.2 Nationality-related legislation proper was only enacted for the first time in Paraguay with the 1870 Constitution, not coincidentally the year the Paraguayan War ended.3 As a result of the rule of José Gaspar Rodríguez de Francia (‘Dr Francia’), whose dictatorship led to a very isolated existence for Paraguay that basically closed the country to foreigners, questions of nationality simply did not arise and Paraguay continued to follow Spanish law.4 The subject of Paraguayan ­citizenship is at present exclusively dealt with in the 1992 Constitution (Chapter 3).5 Article 146 of the Constitution speaks of naturales where the Constitutions of other countries use the terms de origen, por nacimiento or nacionales.6 In contrast to the Colombian natural, who needs to be born in the country in order to possess this quality, the Paraguayan natural is a citizen by birth – be it by descent or by birth in the territory. A Paraguayan citizen by birth cannot be deprived of his/her nationality according to Article 147 of the Constitution, but it can be voluntarily renounced. This may result in statelessness as possession of another citizenship is not 1 Hecker, 187. A formal Act of Independence, however, was only belatedly issued in 1842. See Marcela Ternavasio in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 215. 2 The chapter on Argentina already mentioned that Buenos Aires was the capital of the Viceroyalty of Río de la Plata, created in 1776, and that Paraguay was subordinate to it. See also D.M. Hanratty and S.W. Meditz, Paraguay, a country study, 2nd ed. (Washington, d.c.: Federal Research Division of the Library of Congress, 1990), 14 ff. 3 The Paraguayan war lasted from 1864 to 1870 and is also called the War of the Triple Allegiance, as Paraguay simultaneously fought Argentina, Brazil and Uruguay. The results of the war were disastrous for Paraguay: ‘Estimates of Paraguay’s wartime deaths from combat, cholera and other causes range from 8.7 percent to 50 percent of the prewar population. Brazil and Argentina eventually acquired approximately 55,000 square miles of Paraguayan territory’. See J.D. Henderson et al., A reference guide to Latin American h­ istory (Armonk, N.Y.: M.E. Sharpe, 2000), 131. 4 Moosmayer, 125. As regards the Spanish laws, the author refers to the ‘Partidas’ and the ‘Recopilación de Indias’. The former, created in the years 1251–1265, was considered the most extensive compilation of legislation since Roman times; the latter were confirmed by King Carlos II in 1680 and were enacted in relation to the regulation of Spanish possessions in America and the Philippines. See http://faculty.washington.edu/petersen/alfonso/7part_1 .htm and http://www.congreso.gob.pe/ntley/LeyIndiaP.htm. 5 The Constitution entered into force on 20 June 1992 and was last amended on 8 November 2011. See http://www.tsje.gov.py/constituciones.php. 6 For example de origen in Guatemala; por nacimiento in Venezuela; and nacional in Nicaragua.

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required. Statelessness can also follow from loss due to residence abroad for three years without a valid reason (L02).7 While the different treatment of naturalized citizens in comparison to citizens by birth is allowed under Article 7(4) of the 1961 Convention, the three-year term is not: A naturalized person may lose his nationality [and become stateless] 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.8 The Secretary General of the United Nations has also stated in respect of this ground for loss that, being an exception to the general rule that statelessness should be prevented, it ought to be construed narrowly.9 Loss due to acquisition of a foreign citizenship (L05) also applies to naturalized citizens only. By doing so, Paraguay can be said to accept dual nationality half-heartedly. Indeed, Paraguayan citizens by birth will retain their nationality upon naturalization abroad, while naturalisees in Paraguay may keep their nationality of origin when naturalizing (A06). The dual nationality treaty with Spain and its additional protocol entered into force on 15 December 1959 and 1 March 2001, respectively.10 Bibliography Centurión, Francisco. Derecho constitucional. Asunción: Emasa, 1998, p. 363–371. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 187–199. Moosmayer, Peter. Staatsangehörigkeitsrecht von Argentinien, Uruguay und Paraguay. Frankfurt am Main: Alfred Metzner Verlag, 1972. Rolón, Alejandro. Convenio de doble nacionalidad. Asunción: S.N., 1984. [Contains only the text of the Convention and no commentary.] Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012. 7 8 9 10

Centurión, 367. crs 7(3) and 7(4). See para. 27 of Secretary General of the un, “Human rights and arbitrary deprivation of nationality.” Vonk, 284, 296.

A07

A06

A05

A03a A03b A04

A02b

A02a

A01b

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization Socialization based acquisition

Descent (born in the country) Descent (born abroad)

A01a

No provision

Naturalization (discretionary) n.a.

n.a.

No provision

Const 148

Automatic n.a. n.a.

n.a.

Person has been resident in Paraguay for at least 3 years. Other conditions: work participation and good behaviour. n.a.

n.a.

Person is an infant found in Paraguay of unknown parentage. n.a. n.a.

n.a.

Person is born abroad to a citizen in the service of Paraguay; Person is born abroad to a citizen and establishes permanent residence in Paraguay (declaration by parent until age 18 and by person him/ herself after age 18). Person is born in Paraguay.

Automatic; Declaration

Automatic

n.a.

conditions

n.a.

procedure

Const 146(4) No provision No provision

No provision

Const 146(1)

Const 146(2); Const 146(3) +  final part

No provision

short description articles

idmode

modesacq Paraguay

Paraguay

299

A19 A20 A21

A18

A16 A17

A13 A14 A15

A12

Spousal transfer Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence

A08 A09 A10 A11

No provision No provision No provision

No provision

No provision No provision

No provision No provision No provision

No provision

No provision No provision No provision No provision

short description articles

idmode

modesacq Paraguay

(Table continued)

n.a. n.a. n.a.

n.a.

n.a. n.a.

n.a. n.a. n.a.

n.a.

n.a. n.a. n.a. n.a.

procedure

n.a. n.a. n.a.

n.a.

n.a. n.a.

n.a. n.a. n.a.

n.a.

n.a. n.a. n.a. n.a.

conditions

300 chapter 5

Refugees Stateless or unclear citizenship Special achievements Public service Financial assets Acquisition of citizenship for other reasons

Renunciation of Const 147 citizenship Residence abroad Const 150

Service in foreign No provision army Other service for No provision foreign country

L01

L03

L04

L02

short description articles

No provision No provision No provision

Const 151

No provision No provision

idmode

modesloss Paraguay

A25 A26 A27

A24

A22 A23

n.a.

n.a.

Withdrawal

Declaration

procedure

Naturalization (discretionary) n.a. n.a. n.a.

n.a. n.a.

n.a.

Person is a citizen by naturalization and has been resident abroad for more than 3 years without a valid reason. Loss can result in statelessness. n.a.

No other conditions. Loss can result in statelessness.

conditions

Person is granted honorary citizenship for having rendered eminent services to Paraguay. n.a. n.a. n.a.

n.a. n.a.

Paraguay

301

L12

L11

L10

L08 L09

L07

L06

L05

idmode

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse

No provision

n.a.

n.a.

n.a.

No provision

No provision

n.a. n.a.

No provision No provision

n.a.

n.a.

No provision

No provision

Withdrawal

procedure

Const 150

short description articles

modesloss Paraguay

(Table continued)

n.a.

n.a.

n.a.

n.a. n.a.

n.a.

n.a.

Person is a citizen by naturalization and voluntarily acquires another citizenship.

conditions

302 chapter 5

L15

L13b L14

L13a

Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

No provision

No provision No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a. n.a.

n.a.

Paraguay

303

304

chapter 5

Peru In 1532 the Spanish conquistadors invaded the Inca Empire, which spanned a third of the South American continent and had what is now Peru as its center. With the discovery of the Potosí silver mines in Upper Peru (now Bolivia), Peru became ‘Spain’s great treasure house in South America’.1 The viceroyalty of Peru was established as early as 1542 and, having being described as ‘the fortress of Spain in America’ during the revolutionary period,2 was traditionally the most loyal of the Spanish colonies. The country became independent on 28 July 1821,3 addressing the matter of nationality in the Constitution of 8 October 1821.4 Currently, Articles 52 and 53 of the 1993 Peruvian Constitution,5 the 1996 Nationality Act,6 and Supreme Decree no. 004-97-IN (abbreviated as ‘sd’ in the table) of 1997 lay down the rules on Peruvian nationality.7 Somewhat confusingly, it frequently happens that the Nationality Act seems to have exhaustively listed the requirements under a certain mode of acquisition or loss, but that the Decree then (apparently somewhat randomly) adds a further requirement.8 It is therefore strongly advised to consult both documents as well as the Constitution carefully when studying Peruvian nationality law. Although not specifically mentioned in the Constitution, the Nationality Act specifies that only children born abroad to nationals by birth (por nacimiento) can acquire Peruvian nationality by registration. Transmission of Peruvian nationality under this mode of acquisition is limited to the third generation – in other words, to the second generation born abroad. It is noted that the procedure is by registration, and therefore not automatic. This means that the 1 R.A. Hudson, Peru, 18. 2 J. Lynch, The Spanish American Revolutions 1808–1826, 37. 3 See Natalia Sobrevilla Perea in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 241. 4 Hecker, 190. 5 The Constitution entered into force on 29 December 1993 and was last amended by Ley no. 28.480 of 30 March 2005. See http://www.tc.gob.pe/legconperu/constitucion.html. Much information can also be found at http://www.digemin.gob.pe/ (under the heading ‘nacionalización’). 6 The Nationality Act (Ley no. 26574; Ley de Nacionalidad) entered into force on 3 January 1996. See http://www.mintra.gob.pe/migrante/pdf/ley_nacionalidad.pdf. 7 The Supreme Decree (Aprueban el Reglamento de la Ley de Nacionalidad; Decreto Supremo no. 004-97-IN) entered into force on 23 May 1997. See http://spij.minjus.gob.pe/CLP/contenidos .dll/temas/coleccion00000.htm/tomo00944.htm/libro00945.htm/sumilla00950.htm? f=templates$fn=document-frame.htm$3.0#JD_DS004-97-IN. 8 For example, the Decree lists as an additional requirement for naturalization (A06) that the applicant have sufficient means of subsistence.

305

Peru

child will be stateless if he or she is not registered, which is a violation of the international standards.9 Nationality cannot be withdrawn or nullified.10 This also applies to naturalized citizens. Renunciation of Peruvian nationality is possible, however, and is not conditional upon possessing another nationality. As citizenship cannot be withdrawn, naturalization abroad will not lead to loss of Peruvian nationality. This is formulated rather awkwardly for non-native Spanish speakers in Article 9 of the original text, which reads ‘Los peruanos de nacimiento que adoptan la nacionalidad de otro país pierden su nacionalidad, salvo que hagan renuncia expresa de ella ante autoridad competente’.11 My translation of ‘salvo que’ would here be ‘if’ and the provision would then read: ‘Peruvians by birth who acquire the nationality of another country lose  their [Peruvian] nationality if they formally renounce it before the ­competent authority’.12 The dual nationality treaty with Spain and its additional protocol entered into force on 15 December 1959 and 1 December 2001, respectively.13 Bibliography Alvarado G, Luis. Crítica de nuestra legislación en materia de nacionalidad. Lima: Torres Aguirre, 1940. [41 p; only the first part is on Peruvian nationality law and contains a general analysis.] Aramburú Menchaca, A.A. “La nacionalidad en la Constitución Peruana de 1979.” Revista Peruana de Derecho Internacional 32 (1980): 17–43. ——. “La nacionalidad en la constitución del Perú.” In Libro homenaje a Ulises Montoya Manfredi, edited by Rómulo E. Lanatta. Lima: Cultural Cuzco, 1989, p. 97–114.

9 10 11

12 13

See ‘Mode of protection against statelessness’ S04 in O. Vonk, M. Vink, and G.-R. de Groot, “Database on Protection against Statelessness in Europe.” See also Figueroa Gutarra, 332. A Dutch translation from the ‘Kennisbank Burgerzaken’ uses the word ‘not’ in brackets, in the sense of ‘do [not] lose…unless’. This I disagree with. Introducing an essential word like ‘not’ in a sentence that does not use the Spanish ‘no’ seems unwise. Their translation reads: ‘Peruanen door geboorte die een vreemde nationaliteit aannemen, verliezen hun [Peruaanse] nationaliteit [niet], tenzij zij ten overstaan van het bevoegde gezag daarvan uitdrukkelijk afstand doen’. A useful and generally reliable dictionary that can be used for the purposes of legal translation is found at http://iate.europa.eu/iatediff/SearchByQueryLoad.do?method=load. Vonk, 284, 296.

306

chapter 5

Editora Normas Legales. Nacionalidad, compendio legislativo. Trujillo, Perú: Editora Normas Legales, 1997. [Useful collection of past and present texts relating to Peruvian nationality law, including the relevant administrative procedures; does not contain a commentary.] Figueroa Gutarra, Edwin. Derecho constitucional: Estudios sistemático y comparado de los derechos fundamentales de la persona. vol. 2, Lima: Editorial San Marcos, 2012, p. 207–210, 332–333. García Calderón, Manuel. Repertorio de derecho internacional privado; jurisprudencia, legislación, concordancias y notas. Lima, 1961. [Tome III (326 p), called ‘Nacionalidad y Nacionalización’, provides much information on Peruvian nationality law; more a collection of materials than a commentary.] López Martínez, Kleeberg. Nacionalidad peruana y Constitución. Lima: S.N, 1984. [75 p; pages 15–52 are a commentary and general analysis of nationality law; pages 55–75 contain legal texts.] Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 190–201. Meyer-Lindenberg, Hermann, Philipp Schmidt-Schlegel and Peter Moosmayer. Das Staatsangehörigkeitsrecht von Bolivien und Peru. Frankfurt am Main: Alfred Metzner Verlag, 1963. Padilla Bendezú, Abraham. “Pérdida y recuperación de la nacionalidad en las constituciones del Perú.” Revista Peruana de Derecho Internacional 40, no. 96 (1980): 235–253. Rioja Bermúdez, Alexander. Constitución Política del Perú de 1993. Lima: Jurista Editores, 2009, p. 202–204. Sar, Omar A. Constitución política del Perú: con la jurisprudencia, artículo por artículo, del Tribunal Constitucional. 3rd ed. Lima: Nomos & Thesis Editorial, 2006, p. 266–267. Viera Gallo, Antonio. Estudio jurídico sobre la nacionalidad de los hijos de peruanos residentes en los territorios de Tacna y Arica, nacidos durante la posesión de Chile. Iquique: Imprenta de El Nacional, 1913. [17 p; very short book exclusively focused on the territories mentioned.] Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012.

A05

A03b A04

A03a

A02b

A02a

Born stateless Establishment of paternity Birth in country (acquisition after birth)

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings

Descent (born in the country) Descent (born abroad)

A01a

A01b

short description

idmode

modesacq Peru

n.a. n.a. n.a.

No provision

Automatic

n.a.

n.a.

n.a. n.a.

Person is an abandoned minor of unknown parents who resides in Peru.

n.a.

Person is born abroad to a citizen by birth and is registered while a minor with the Peruvian consulate of the country of birth. Provision only applies to descendants up to the 3rd generation; Person is born abroad to a citizen, makes a declaration upon reaching the age of majority, and is resident in Peru. Person is born in Peru.

Registration; Declaration

Automatic

n.a.

conditions

n.a.

procedure

per 2(2), sd 4(b) No provision No provision

Const 52, per 2(1), sd 4(a) No provision

Const 52, per 2(3), sd 4c; per 4(3), sd 16c, 24

No provision

articles

Peru

307

Ordinary naturalization

Socialization based acquisition

Spousal transfer

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives

A06

A07

A08

A09 A10 A11

A13 A14 A15

A12

short description

idmode

modesacq Peru

(Table continued)

No provision No provision No provision

No provision

No provision No provision No provision

per 4(2), sd 16(b), 20

per 4(1), sd 16(a)

per 3(1), sd 8(a), 15

articles

conditions

n.a. n.a. n.a.

n.a. n.a. n.a. n.a.

n.a.

Naturalization Person has been resident in Peru for a continuous period of at least 2 (discretionary) years. Other conditions: full capacity, exercise a profession or enterpreneurial activity or have sufficient means of subsistence, clean criminal record, and good behaviour and morals. Declaration Person was born abroad to non-citizens who have been resident in Peru since the child was 5 years old and he/she expresses the wish to become a citizen upon reaching the age of majority. Declaration Person is the spouse of a citizen and has been resident in Peru, with common household, for 2 years. Other conditions: clean criminal record, good behaviour and morals, no contagious disease, and sound mind. n.a. n.a. n.a. n.a. n.a. n.a.

procedure

308 chapter 5

Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements Public service Financial assets Acquisition of citizenship for other reasons

A17

A25 A26 A27

A24

A22 A23

A19 A20 A21

A18

Reacquisition

A16

per 3(2), sd 8(b) No provision No provision No provision

No provision No provision

No provision No provision No provision

No provision

No provision

per 8, sd 28

Naturalization (discretionary) n.a. n.a. n.a.

n.a. n.a.

n.a. n.a. n.a.

n.a.

n.a.

Declaration

n.a. n.a. n.a.

Person has rendered distinguished services to Peru.

n.a. n.a.

n.a. n.a. n.a.

n.a.

Person is a former citizen by birth who lost citizenship by renunciation and has been resident in Peru for a continuous period of at least 1 year. Other conditions: exercise a profession or enterpreneurial activity (or show proof that such activities will be exercised shortly), and good behaviour and morals. n.a.

Peru

309

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition

L01

L08 L09

L07

L06

L05

L04

L02 L03

short description

idmode

modesloss Peru

(Table continued)

procedure

No provision No provision

n.a. n.a.

n.a.

n.a.

No provision

No provision

n.a.

n.a.

n.a. n.a.

No provision

No provision

No provision No provision

Const 53, per 7 Declaration

articles

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

n.a. n.a.

No other conditions. Loss can result in statelessness.

conditions

310 chapter 5

L15

L13b L14

L13a

L12

L11

L10

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

No provision

No provision No provision

No provision

No provision

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

Peru

311

312

chapter 5

Saint Kitts and Nevis The country of St Kitts, its formal name being Saint Christopher and Nevis, has been an independent two-island nation within the Commonwealth since 19 September 1983.1 Ever since it was established in the 1620s, making it the first English colony in the Caribbean, the country has been under either English or combined English-French rule. ‘The British and French’, in fact, ‘kept up un uneasy cohabitation on St Kitts until 1713, when Britain was granted sole dominion under the Treaty of Utrecht’.2 Upon gaining independence from Britain, St Kitts legislated on matters of nationality in Chapter 8 of the 1983 Constitution and the 1984 Citizenship Act.3 Citizenship of St Kitts is transmitted to children born abroad only if a parent is a foreign diplomat. This means that there is a considerable risk of statelessness if the child does not acquire another citizenship at birth. No protection mechanism seems to exist under the law to still provide such a child with the citizenship of St Kitts. Dual citizenship is accepted, both for foreigners naturalizing in St Kitts and for citizens who take up another nationality. The long residence requirements for naturalization are particularly noteworthy. Not only must ordinary naturalisees have resided in St Kitts for fifteen years (A06), even commonwealth citizens are subject to a fourteen-year residence requirement under A18. As regards this latter mode, a separate reference to citizens of Ireland, as found for example in Grenada and T&T, is lacking in St Kitts. Mode A26 is further elaborated in the Citizenship by Investment Programme. The concept of ‘economic citizenship’, the legal ground for which is found in stk 3(5), was introduced by St Kitts in 1984. Persons who invest a significant amount of money in the country can acquire citizenship without being subject to any previous residence requirement.4 As Dzankic observes with regard to the concrete effects of what is also often called ‘investor citizenship’, naturalisation by investment does not confer all the citizenship rights to those who have acquired the citizenship of St. Kitts and Nevis but have opted not to reside there…[R]ights and duties inherent in the 1 Fransman, 1192–1198. 2 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, 457. 3 The Constitution entered into force on 23 June 1983 and is available at http://pdba .georgetown.edu/constitutions/kitts/kitts83.html. The Saint Christopher and Nevis Citizenship Act 1984 (No. 1 of 1984) entered into force on 28 February 1984 and is found at http://www .corporatesolutionsltd.com/uploads/Citizenship_Act.pdf. 4 See for more details the government’s website at http://www.ciu.gov.kn/.

Saint Kitts and Nevis

313

concept of  citizenship (such as participation, and taxation) are not transferred on the beholders of the country’s passport, as they depend on the establishment of a genuine link with St. Kitts and Nevis through residence.5 As regards the different modes of loss, the distinction made between naturalized and registered citizens is noteworthy. In some cases a ground for loss only applies to citizens by naturalization and registration (L07 and L09), while in other cases only naturalized citizens are at risk of losing their citizenship (L04 and L08). Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 208. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 1192–1198. 5 J. Dzankic, “The pros and cons of ius pecuniae: investor citizenship in comparative perspective,” 10. See in this connection also Dzankic’s observations in the chapter on Dominica.

Descent (born No provision in the country) Descent (born Const 91(b) abroad) Birth in country Const 91(a) (2nd generation)

A01a

Born stateless

Establishment of No provision paternity Birth in country No provision (acquisition after birth)

A04

A05

n.a.

Automatic

Automatic

n.a.

procedure

n.a.

n.a.

Const 95(5)c, Automatic stk 3(1) stk 3(6), 3(8), Registration 3(9) (entitlement)

A03b

A03a

Birth in country (3rd generation) Foundlings

A02b

A02a

No provision

short description articles

idmode

A01b

St Kitts

modesacq

n.a.

Person is a minor or adult who was born in St Kitts and has always been stateless. Other conditions: no danger to public defence, safety or order, no sentence to death or a prison sentence of at least 12 months, good character, not declared bankrupt, sufficient means for self-support, oath of loyalty. n.a.

Person is a newborn infant found in St Kitts of unknown parentage.

Person is born abroad to a citizen who is in the government service of St Kitts. Person is born in St Kitts. Unless born to a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

n.a.

conditions

314 chapter 5

A14

A13

A12

A09 A10 A11

A08

Filial extension

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension

No provision

Const 92(1)e, 92(3), stk 3(8), 3(9)

No provision

No provision stk 4 No provision

Socialization No provision based acquisition Spousal transfer Const 92(1)a, 92(3), stk 3(8), 3(9)

A07

Const 94(a), stk 6, Schedule 2–3

Ordinary naturalization

A06

Person is the spouse of someone who becomes a citizen by virtue of mode A16 or A18. Other conditions: no danger to public defence, safety or order, no sentence to death or a prison sentence of at least 12 months, good character, not declared bankrupt, sufficient means for self-support, and oath of loyalty. n.a.

Registration (entitlement)

n.a.

n.a.

Person is the spouse of a citizen. Other conditions: no danger to public defence, safety or order, no sentence to death or a prison sentence of at least 12 months, good character, not declared bankrupt, sufficient means for self-support, and oath of loyalty. n.a. Person is a minor who is adopted by a citizen. n.a.

n.a.

n.a. Automatic n.a.

Registration (entitlement)

Naturalization Person has been resident in St Kitts for 12 months immediately prior to (discretionary) the application (unless person is a British protected person), as well as for 14 years predating the 12-month period. Other conditions: full capacity, good character, intent to reside in St Kitts, and oath of loyalty. Minister is explicitly allowed to waive certain requirements. n.a. n.a.

Saint Kitts and Nevis

315

Extension to other relatives Reacquisition

A15

A21

A19 A20

A18

A17

A16

short description articles

idmode

Person is a former citizen who renounced citizenship. Other conditions: no danger to public defence, safety or order, no sentence to death or a prison sentence of at least 12 months, good character, not declared bankrupt, sufficient means for self-support, and oath of loyalty. n.a.

Registration (entitlement)

Cultural affinity Presumed citizens Very long residence

No provision

No provision No provision n.a.

n.a. n.a.

n.a.

Person is a Commonwealth citizen, of full capacity, and has been ordinarily resident in St Kitts, or in government service, or had partly such residence and partly such service for 14 years immediately prior to the application. Other conditions: no danger to public defence, safety or order, no sentence to death or a prison sentence of at least 12 months, good character, not declared bankrupt, sufficient means for self-support, and oath of loyalty. n.a. n.a.

n.a.

conditions

n.a.

procedure

Restricted No provision n.a. citizenship rights Citizenship of a Const 92(1)b, Registration (entitlement) specific country 92(3), stk 3(3), 3(8), 3(9)

Const 92(1)c, 92(3), stk 3(8), 3(9)

No provision

St Kitts

modesacq

(Table continued)

316 chapter 5

Acquisition of citizenship for other reasons

Refugees Stateless or unclear citizenship Special achievements Public service Financial assets

Renunciation of citizenship

Residence abroad No provision Service in foreign No provision army

L01

L02 L03

Const 94(b), stk 7(1)

short description articles

No provision

No provision stk 3(5)

No provision

No provision No provision

idmode

modesloss St Kitts

A27

A25 A26

A24

A22 A23

n.a. n.a.

Declaration

procedure

n.a. Naturalization (discretionary) n.a.

n.a.

n.a. n.a.

Person is or becomes a citizen of another country. Renunciation only takes effect after registration by the authorities. If citizenship of another country is not acquired within 6 months from the date of registration, the renunciation will become invalid. n.a. n.a.

conditions

n.a. Person is someone whose acquisition of citizenship would be in the special economic interest of St Kitts. n.a.

n.a.

n.a. n.a.

Saint Kitts and Nevis

317

L08

L07

Other offences

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason

L05

L06

Other service for foreign country

L04

n.a.

No provision

Const 94(d), stk 9(1)a(ii), 9(1)b, 9(2)

Withdrawal

Withdrawal Const 94(d), stk 8, 9(1)a(i), 9(1)c, 9(1)e

n.a.

Withdrawal

procedure

No provision

Const 94(d), stk 9(1)d

short description articles

idmode

modesloss St Kitts

(Table continued)

Person acquired citizenship by registration or naturalization and has been convicted of treason or sedition. Or person acquired citizenship by naturalization and engaged in activities prejudicial to the safety of St Kitts, or has been disloyal (in act or speech) towards St Kitts. Loss can result in statelessness. Person acquired citizenship by naturalization and has been convicted in any country for a criminal offence that carries the dealth penalty or imprisonment for at least 7 years (loss can result in statelessness), or has within 5 years of acquisition been sentenced in any country to imprisonment for at least 12 months (loss cannot result in statelessness).

n.a.

Person acquired citizenship by naturalization and has in any way assisted the enemy in a war in which St Kitts was engaged. Loss can result in statelessness. n.a.

conditions

318 chapter 5

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

L10

L15

L13b L14

L13a

L12

L11

Fraudulent acquisition

L09

No provision

n.a.

n.a. n.a.

n.a.

No provision

No provision No provision

n.a.

No provision

n.a.

n.a.

No provision

No provision

Withdrawal

Const 94(d), stk 8, 9(1)

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness. n.a.

Saint Kitts and Nevis

319

320

chapter 5

Saint Lucia Due to the fierce resistance of the original inhabitants, the Carib Indians, St Lucia was not colonized until the mid-seventeenth century by France. However, Britain contested French rule over the island and St Lucia ‘alternatively [fell] under the control of France and Britain fourteen different times in the ­eighteenth and early nineteenth centuries’.1 Having been formally acquired by Britain in 1814 under the Treaty of Paris, St Lucia became an independent country within the Commonwealth on 22 February 1979.2 Citizenship of the country is dealt with in Chapter 7 of the Constitution and the 1979 Citizenship of Saint Lucia Act.3 Since any child born in St Lucia becomes a citizen automatically, there is no need for mode A03b. A23 offers additional protection for stateless children by providing for a discretionary registration procedure for stateless minors.4 Although this appears to be a form of facilitated access to citizenship as required by Article 32 of the 1954 Convention Relating to the Status of Stateless Persons, there is much room for improvement here. Not only should adults be able to benefit from facilitated access too, acquisition should also ideally be an entitlement rather than a discretionary grant. This would reflect the heightened responsibility of a State under international law for securing a nationality for stateless persons. In contrast to modes A06 and A16, an oath of loyalty is not required under A18 (see Article 102(4) of the Constitution). Renunciation can lead to statelessness as holding another citizenship is not required. All other forms of loss can also result in statelessness. The ground for loss for which several other Caribbean countries make an exception in the sense that it cannot result in statelessness – namely conviction for ‘other offences’ (L08)5 – is not a ground for loss at all in St Lucia.

1 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, 293. 2 Fransman, 1199–1205. 3 http://pdba.georgetown.edu/constitutions/lucia/stlucia.html. The Citizenship of Saint Lucia Act (Act 7 of 1979) was not found online but is on file with the author. It entered into force on 5 June 1979 and was last amended by Act 20, which entered into force on 22 December 1984. 4 This is somewhat similar to the current British rule under mode A27, with the exception that the child does not need to be stateless in Britain. See M. Vink, O. Vonk, and I. Honohan, “Modes of Acquisition of Citizenship in Europe.” 5 See for example the Bahamas and Barbados, but not Grenada and Jamaica.

Saint Lucia

321

Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 209. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 1199–1205.

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation)

A01a

Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

A03b A04

A06

A05

A03a

Birth in country (3rd generation) Foundlings

A02b

A02a

A01b

short description articles

idmode n.a.

procedure

stl 8

No provision

Naturalization Person has been resident in St Lucia for 12 months immediately prior (discretionary) to the application, and was either resident in St Lucia, or in government service, or had partly such residence and partly such service for 7 years predating the 12-month period. Other conditions: renunciation of

n.a.

n.a.

No provision No provision

n.a.

Person is born in St Lucia. Unless born to a father who is a foreign diplomat and neither parent is a citizen, or the father is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

Person is born abroad to a citizen otherwise than by descent.

n.a.

conditions

Registration Person is a minor infant born in St Lucia of unknown parentage. (discretionary) n.a. n.a. n.a. n.a.

stl 7(2)

No provision

Const 100, stl 4 Automatic

Const 101, stl 5 Automatic

No provision

St Lucia

modesacq

322 chapter 5

A16

A13 A14 A15

A12

Const 102(1)c, 102(4), stl 6(1)d

No provision No provision No provision

No provision

No provision stl 7(1) No provision

n.a. n.a. n.a. Person is a former citizen who renounced citizenship in order to acquire or retain citizenship of another country. Other conditions: no danger to public defence, safety or order, and oath of loyalty (with exceptions).

Registration (entitlement)

n.a.

Person is the spouse of a citizen. Other conditions: no danger to public defence, safety or order, adequate knowledge of English, no sentence for a criminal offence that carries a prison sentence of at least 6 months or for a drugs-related offence, good character, residence in the country, and oath of loyalty (with exceptions). n.a. Person is adopted by a citizen. n.a.

n.a. n.a. n.a.

n.a.

n.a. Automatic n.a.

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition

A09 A10 A11

A08

Socialization No provision n.a. based acquisition Registration Spousal transfer Const 102(1)a, 102(2)a, 102(4), (entitlement) stl 6(1)a, 6(2)a, 6(6)

A07

another citizenship, good character, full capacity, adequate knowledge of English and of the duties of a citizen, intent to reside in St Lucia or to continue government service, and oath of allegiance. Minister is explicitly allowed to waive certain requirements. n.a.

Saint Lucia

323

Restricted No provision citizenship rights Citizenship of a Const 102(2)b, specific country stl 6(1)b, stl 6(6)

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

A17

A19 A20 A21

A24

A22 A23

No provision

No provision stl 7(2)

No provision No provision No provision

short description articles

idmode

A18

St Lucia

modesacq

(Table continued)

Person is a Commonwealth citizen and has been ordinarily resident in St Lucia for 7 years immediately prior to the application. Other conditions: good character, adequate knowledge of English, no sentence for a criminal offence that carries a prison sentence of at least 6 months or for a drugs-related offence, no danger to public defence, safety or order, residence in the country. n.a. n.a. n.a.

Registration (entitlement)

n.a.

n.a.

n.a. n.a. Registration Person is a minor who is stateless. (discretionary)

n.a. n.a. n.a.

n.a.

conditions

n.a.

procedure

324 chapter 5

Public service Financial assets Acquisition of citizenship for other reasons

No provision Acquisition of foreign citizenship Non-renunciation No provision foreign citizenship (acquisition by birth)

L05

L06

L04

L02 L03

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country

L01

Const 103b, stl 9(2)c

Const 103c, stl 10 No provision No provision

short description articles

No provision No provision No provision

idmode

modesloss St Lucia

A25 A26 A27

n.a.

n.a.

n.a.

Person acquired citizenship by registration or naturalization and has in any way assisted the enemy in a war in which St Lucia was engaged. Loss can result in statelessness. n.a.

Person is of full capacity and will become a citizen of another country. Renunciation only takes effect after registration by the authorities. n.a. n.a.

conditions

n.a. n.a. n.a.

Withdrawal

n.a. n.a.

Declaration

procedure

n.a. n.a. n.a.

Saint Lucia

325

Other offences Fraudulent acquisition

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity

L08 L09

L10

L13a

L12

L11

Disloyalty or treason

L07

n.a. n.a.

No provision

No provision

n.a.

n.a.

No provision

No provision

n.a. Withdrawal

Withdrawal

procedure

No provision Const 103b, stl 9(2)a

Const 103b, stl 9(2)b

short description articles

idmode

modesloss St Lucia

(Table continued)

n.a.

n.a.

n.a.

Person acquired citizenship by registration or naturalization and has been disloyal (in act or speech) towards St Lucia. Loss can result in statelessness. n.a. Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness. n.a.

conditions

326 chapter 5

L15

L13b L14

Adoption Establishment foreign citizenship Loss for other reasons

No provision

No provision No provision

n.a.

n.a. n.a.

n.a.

n.a. n.a.

Saint Lucia

327

328

chapter 5

Saint Vincent and the Grenadines Like in the case of St Lucia, the island of St Vincent was only settled by European powers in the late seventeenth century due to the strong resistance by the Carib Indians. After a long period of fighting over St Vincent between France and Britain, the island was, like Grenada, acquired by Britain under the 1783 Treaty of Versailles.1 A noteworthy fact is that the Caribs, increasingly resentful of British sovereignty, revolted yet were quickly subdued. Most of them were subsequently deported to the former British Honduras (now Belize) in 1797.2 St Vincent attained independence within the Commonwealth on 27 October 1979, and Chapter 7 of the 1979 Constitution and the 1984 Citizenship Act are relevant for its current citizenship legislation.3 St Vincent has automatic ius soli (A02a), although an exception is made as in most former British colonies in the Caribbean for children born to foreign diplomats or enemy aliens. stv 4 rather confusingly reads that ‘In addition to the provisions of the Constitution…a person born in [St Vincent]…is a citizen of [St Vincent] by birth if his mother was a citizen of [St Vincent]’. In the absence of clear guidance on how to interpret this, it is assumed that children born in St Vincent simply automatically acquire citizenship at birth. While St Vincent recognizes the vulnerable situation of refugees and stateless persons, no concrete effort is made to put them on a track to citizenship. That is, under stv 9(d) and (e) both groups can admittedly become citizens of St Vincent through a discretionary registration procedure, but this is clearly too vague to offer any real protection. Even though it is acknowledged that the international norms are not particularly clear about what can be expected of States in terms of granting facilitated naturalization to refugees and stateless persons,4 it is evident that at present one cannot speak of any substantive facilitation in St Vincent.5 St Vincent also scores badly from the perspective of statelessness as regards its loss provisions. For instance, residence abroad for a period of five years can result in the loss of citizenship if the person is a naturalized citizen. The 1 L. Fransman, British Nationality Law, 1205–1211. 2 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, 321. 3 The Constitution entered into force on 27 October 1979 and is available at http://pdba .georgetown.edu/Constitutions/Vincent/stvincent79.html. The Saint Vincent and the Grenadines Citizenship Act of 1984 (No 12 of 1984) entered into force on 17 May 1984. It was not found online but is on file with the author. 4 E. Mrekajová, “Facilitated Naturalization of Stateless Persons,” T.L.R 19, no. 1–2 (2014). 5 On these international norms, see O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness,” 58–66.

Saint Vincent and the Grenadines

329

five-year period is clearly shorter than the seven-year period accepted under international law (crs 7(4)). Of course, it would be even better not to render persons stateless under this ground for loss and to remove the discriminatory element from the provision. Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 211. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 1205–1211.

A06

A05

A03a A03b A04

A02b

A02a

A01b

Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation)

A01a Automatic

n.a.

procedure

n.a.

n.a. n.a. n.a.

Person is born in St Vincent. Unless born to a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

Person is born abroad to a citizen otherwise than by descent.

n.a.

conditions

Naturalization Person has been resident in St Vincent for 12 months immediately prior to (discretionary) the application, and was either resident in St Vincent, or in government service for 6 out of 9 years predating the 12-month period. Other conditions: renunciation of another citizenship (at the discretion of the Minister), good character, full capacity, adequate knowledge of English and

n.a.

No provision

stv 12, Schedule 2

n.a. n.a. n.a.

n.a.

No provision No provision No provision

No provision

Const 91, stv 4 Automatic

Const 92

No provision

short description articles

idmode

modesacq St Vincent

330 chapter 5

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives

A09 A10 A11

A13 A14 A15

A12

A08

Socialization based acquisition Spousal transfer

A07

No provision No provision No provision

No provision

No provision stv 5 No provision

Const 93(1)a, 93(2)a, 93(4), stv 7

No provision

n.a. n.a. n.a.

n.a.

n.a. Automatic n.a.

Registration (entitlement)

n.a.

n.a. n.a. n.a.

n.a.

Person is the spouse of a citizen. Registration can be denied in the interests of defence, public safety or public order, if the person was sentenced for a criminal offence to death or to a prison sentence of at least 12 months during the 7-year period preceding the application, is not of good character, is a danger to public security, has been declared bankrupt, or has insufficient means for self-support. Other condition: oath of loyalty (only if person has reached the age of 21, and only for British protected persons and persons who are not Commonwealth citizens or citizens of Ireland). n.a. Person is adopted by a citizen or, in case of joint adoption, two citizens. n.a.

of the duties of a citizen, intent to reside in St Vincent or to continue government service, and oath of allegiance. Minister is explicitly allowed to waive certain requirements. n.a.

Saint Vincent and the Grenadines

331

Restricted citizenship rights Citizenship of a specific country

Cultural affinity

A17

A19

A18

Reacquisition

A16

No provision

Const 93(1)b, 93(2)b, stv 7

No provision

Const 93(1)c, 93(4)

short description articles

idmode

modesacq St Vincent

(Table continued)

n.a.

Registration (entitlement)

n.a.

Registration (entitlement)

procedure

Person is a Commonwealth citizen and has been ordinarily resident in St Vincent for 7 years immediately prior to the application. Registration can be denied in the interests of defence, public safety or public order, if the person was sentenced for a criminal offence to death or to a prison sentence of at least 12 months during the 7-year period preceding the application, is not of good character, is a danger to public security, has been declared bankrupt, or has insufficient means for self-support. n.a.

Person is a former citizen who renounced citizenship in order to acquire or retain citizenship of another country. Registration can be denied in the interests of defence, public safety or public order, if the person was sentenced for a criminal offence to death or to a prison sentence of at least 12 months during the 7-year period preceding the application, is not of good character, is a danger to public security, has been declared bankrupt, or has insufficient means for self-support. Other condition: oath of loyalty (only if person has reached the age of 21, and only for British protected persons and persons who are not Commonwealth citizens or citizens of Ireland). n.a.

conditions

332 chapter 5

Financial assets

Acquisition of citizenship for other reasons

A26

A27

Renunciation of citizenship

L01

Const 94c, stv 13

short description articles

stv 9b

stv 9a

stv 9c

No provision

stv 9d

idmode

modesloss St Vincent

A25

A24

Stateless or unclear citizenship Special achievements Public service

Presumed citizens No provision Very long No provision residence Refugees stv 9e

A23

A22

A20 A21

n.a. n.a.

n.a.

Declaration

procedure

Person is of full capacity and is or becomes a citizen of another country. Renunciation only takes effect after registration by the authorities.

conditions

Registration Person has been in the diplomatic or other public service of St Vincent. (discretionary) Registration Person has made an important contribution to the cultural or economic (discretionary) growth of St Vincent for at least 5 years. Other conditions: good behaviour, knowledge of English and of duties of a citizen. Registration Person has been granted permission for permanent residence in (discretionary) St Vincent.

n.a.

Registration Person is a political refugee. (discretionary) Registration Person is stateless. (discretionary)

n.a. n.a.

Saint Vincent and the Grenadines

333

Service in foreign army Other service for foreign country

Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences

L03

L05

L08

L07

L06

L04

Residence abroad

L02

n.a.

Withdrawal

n.a.

No provision

Const 94b, stv 14(2)b No provision

n.a.

Withdrawal

n.a.

Withdrawal

procedure

No provision

Const 94b, stv 14(2)c

No provision

Const 94b, stv 14(2)d

short description articles

idmode

modesloss St Vincent

(Table continued)

Person acquired citizenship by registration or naturalization and has been disloyal towards St Vincent. Loss can result in statelessness. n.a.

n.a.

Person acquired citizenship by registration or naturalization and has in any way assisted the enemy in a war in which St Vincent was engaged. Loss can result in statelessness. n.a.

Person acquired citizenship by registration or naturalization and has been resident abroad for 5 years uninterrupted without returning at least once to St Vincent, or without declaring before a consulate or in writing to the Minister the wish to retain citizenship. Loss can result in statelessness. n.a.

conditions

334 chapter 5

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

L10

L15

L13b L14

L13a

L12

L11

Fraudulent acquisition

L09

No provision

n.a.

n.a. n.a.

n.a.

No provision

No provision No provision

n.a.

No provision

n.a.

n.a.

No provision

No provision

Withdrawal

Const 94b, stv 14(2)a

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness. n.a.

Saint Vincent and the Grenadines

335

336

chapter 5

Surinam It was seen in the chapter on Guyana that the Dutch established the first European settlement in the area of Guyana in 1616. But the British also settled there and soon became the dominant power in the region. Surinam became a Dutch colony on the basis of the 1667 Treaty of Breda which stipulated that the island Manhattan, hitherto a Dutch settlement bearing the name ‘New Netherlands’ (Nieuw Nederland), would be ceded to the British.1 The Dutch received Surinam in return, a territory which would become independent on 25 November 1975. Surinam’s history as a former Dutch colony is reflected in its legislation in the sense that the 1975 Nationality Act exclusively deals with the matter of acquisition and loss of citizenship.2 Like in the Netherlands, there is no need to consult the Constitution in matters of nationality law. The Nationality Act of Surinam is mainly a copy of the previous Dutch Nationality Act of 1892,3 including the subsequent amendments as in force when Surinam gained independence in 1975. The most important features of the law as illustrated by the tables are the lack of any serious protection against statelessness, the opposition against dual nationality, and the many gender discriminatory provisions (A01a, A08, A10). When Surinam became independent from the Netherlands, an allocation treaty was drafted.4 The main principle was that those with a strong link to the Dutch nation would remain Dutch; those whose lives were primarily connected with the Surinam nation and territory were to acquire the nationality of that country. In practice, this meant that all Dutch nationals born in Surinam and there resident on 25 November 1975 acquired Surinam nationality. Dutch nationals born in Surinam to parents who had not been born in Surinam were given the possibility to opt for Dutch nationality within one year after Surinam independence. This was justified by the fact that this group might feel more closely connected to the Netherlands than to Surinam. All those who did not 1 H.L. Wesseling, Europa’s koloniale eeuw (Amsterdam: Bert Bakker, 2003), 22; A.T. van Deursen, De last van veel geluk. De geschiedenis van Nederland, 1555–1702 (Amsterdam: Bert Bakker, 2004), 250–251. 2 Entry into force on 24 November 1975 and last amended by Law no. 22 of 2002. Available in English and Dutch at, respectively, http://www.refworld.org/docid/3ae6b50714.html and http://www.dna.sr/media/18346/wet_op_nationaliteit_en_ingezetenschap.pdf. 3 The Nationality Act currently in force in the Netherlands dates from 1985. 4 ‘Agreement concerning the assignment of citizens between the Kingdom of the Netherlands and the Republic of Surinam’ (Overeenkomst betreffende de toescheiding van staatsburgers tussen het Koninkrijk der Nederlanden en de Republiek Suriname). Available in English, French and Dutch at http://treaties.un.org/doc/publication/UNTS/Volume%20997/v997.pdf (at 27–39).

Surinam

337

fall under this exception definitively lost their prior Dutch nationality.5 Moreover, neither Surinam nor the Netherlands believed in a system of dual nationality.6 Recently, the idea of granting Surinam nationality to non-resident athletes of Surinam descent has been discussed in the country. More particularly, Surinam is investigating the possibility of granting citizenship under the Law Concerning Persons of Surinam Descent to professional athletes belonging to the Surinam diaspora, while exempting them from the normal requirements relating to residence and the renunciation of any other nationalities they may hold.7 Bibliography8 Adhin, K.S. “De toescheidingsovereenkomst inzake nationaliteiten tussen Suriname en Nederland. Een bespreking van artikel 5.” Surinaams Juristenblad (1982): 714–734. Ahmad Ali, Hamied A. Overeenkomst tussen het Koninkrijk der Nederlanden en de republiek Suriname inzake het verblijf en de vestiging van wederzijdse onderdanen. Een analyse uit de praktijk. Utrecht: Stichting Landelijke Federatie van Welzijnsstichtingen voor Surinamers, 1979. ——. Vreemdelingenbeleid Surinamers. 2nd revised ed. Utrecht: Stichting Landelijke Federatie van Welzijnsorganisaties voor Surinamers, 1984. ——. “Gedoogbeleid en staatloosheid bij Surinamers.” Migrantenrecht (1987): 205–206. ——. “Surinaamse gedoogden/naturalisatie van Surinamers.” Migrantenrecht (1989): 17. ——. “De wil het Nederlanderschap te bezitten.” In Feestbundel Zilverentant, edited by F.J.A. van der Velden. 15–17. Den Haag: Ministerie van Justitie-Directie Wetgeving, 1998. ——. De Toescheidingsovereenkomst inzake nationaliteiten tussen Nederland en Suriname. Dissertatie Universiteit Utrecht. s’-Gravenhage: Sdu, 1998. 5 Heijs, 147–149. 6 Ahmad Ali, De Toescheidingsovereenkomst inzake nationaliteiten tussen Nederland en Suriname, 58. 7 ‘Onderzoek toevoeging “nationaliteitsartikel” aan Wet Personen van Surinaamse Afkomst (Wet psa)’. On file with the author. See generally on nationality in relation to sports G.-R. de Groot, “Sports and unfair competition via nationality law,” mj 13, no. 2 (2006). 8 I thank René de Groot for sharing part of this bibliography. See G.-R. de Groot, “Nationaliteitsrecht,” in Personen- en familierecht (looseleafe edition) (Deventer: Kluwer, 2012).

338

chapter 5

——. “Surinaamse emigranten. Duaal burgerschap, onvoorwaardelijke toelating en gelijke behandeling.” In Collected Essays in honour of Kees Groenendijk. 153–159. Nijmegen: Wolf Legal Publishers, 2008. Bleeker, E.E. and Y.J. Kern. “De interpretatie van artikel 6 lid 4 van de Toes­ cheidingsovereenkomst inzake nationaliteiten tussen het Koninkrijk der Nederlanden en de Republiek Suriname (tos).” In Feestbundel Zilverentant, edited by F.J.A. van der Velden. 31–41. Den Haag: Ministerie van Justitie-Directie Wetgeving, 1998. de Boo, R.B. “Nederlanders uit Suriname niet als zodanig (h)erkend.” Personeel Statuut (1986): 67–73. Brinkman, T. “De Surinaamse nationaliteitswet.” Personeel Statuut (1976): 85 ff. Fernandez Mendes, Huge. “De juridische positie van de Surinamers.” Ars Aequi (1981): 636–643. Haarmans, Piet D. De Toescheidingsovereenkomst in de praktijk. De nationaliteitswetgeving bij de souvereiniteitsoverdracht aan de Republiek Suriname. Paramaribo: vaco, 1987. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 212–214. Heijs, Eric. Van vreemdeling tot Nederlander. De verlening van het Nederlanderschap aan vreemdelingen 1813–1992. Dissertatie Katholieke Universiteit Nijmegen. Amsterdam: Het Spinhuis, 1995, p. 144–151. Matjaz, Tratnik. “Vaststelling van het Nederlanderschap en de toescheidingsovereenkomst met Suriname.” Migrantenrecht (1988): 31–33. Ministerie van Justitie. Handleiding betreffende de Toescheidingsovereenkomst inzake nationaliteiten, gesloten tussen het Koninkrijk der Nederlanden en de Republiek Suriname. Den Haag: Sdu, 1975. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012, chapter 4.

Descent (born in the country)

Descent (born abroad)

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless

A01a

A01b

A02a

A04

A03a A03b

Establishment of paternity

short description

idmode

A02b

Surinam

modesacq

sur 4a sur 16a(1)a, 16a(2), 16b sur 3a

No provision

sur 2b

sur 16a(1)c, 16a(2), 16b

sur 3, 4b

articles

conditions

Automatic Naturalization (discretionary) Automatic

n.a.

Person is found in Surinam of unknown parentage. Person is born in Surinam and is stateless. Other conditions: person is resident in Surinam and no danger to public order, morals or health. Person is a minor and the father -who was a citizen at the time of the child’s birth- marries the mother or recognizes the child.

n.a.

Person is born in Surinam and in wedlock (or is legitimated or recognized while a minor) to a father who is a citizen, or out of wedlock to a mother who is a citizen. If child acquires citizenship through the mother and acquires citizenship of another country through the father, he/she is deemed never to have possessed Surinam citizenship. Naturalization Person is born abroad to a citizen born in Surinam who holds citizenship (discretionary) of another country or is stateless. Other conditions: person is resident in Surinam, serious attempt to renounce citizenship of another country after naturalization (unless legally impossible or unreasonable), and no danger to public order, morals or health. Automatic Person is born in Surinam and resident there.

Automatic

procedure

Surinam

339

Spousal transfer Filial transfer Adoption Transfer to other relatives

A08 A09 A10 A11

A07

Ordinary sur 8 naturalization Socialization based sur 16(1) acquisition

A06

sur 12 No provision sur 7 No provision

Person is born in Surinam to a resident parent and has been resident Automatic; Naturalization him/herself for 3 years immediately before reaching the age of majority (discretionary) (not applicable to children of foreign diplomats). Acquisition of citizenship can be refused during the year before reaching the age of majority, provided that the child holds another citizenship; Person is born in Surinam and holds citizenship of another country. Other conditions: person is resident in Surinam, serious attempt to renounce citizenship of another country after naturalization (unless legally impossible or unreasonable), and no danger to public order, morals or health. Naturalization Person has been resident in the country for 5 years immediately (discretionary) preceding the application. Naturalization Person is a minor born to a mother who is a citizen and a father who has (discretionary) died or is legally unknown, and child has been resident in Surinam for at least 1 year before the application. Declaration Person is the female spouse of a male citizen. n.a. n.a. Automatic Person is a minor who is adopted by a male citizen. n.a. n.a.

sur 5; sur 16a(1)a, 16(2), 16b

Birth in country (acquisition after birth)

A05

conditions

procedure

short description

idmode

articles

Surinam

modesacq

(Table continued)

340 chapter 5

Extension to other No provision relatives Reacquisition sur 16a(1)b, 16a(2), 16b

Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence

A17

A19 A20 A21

A18

A16

No provision No provision No provision

No provision

No provision

No provision sur 10

A15

A13 A14

No provision

Transfer from former citizen Spousal extension Filial extension

A12

n.a. Person is born in wedlock (or is legitimated or recognized while a minor) to a father who acquires citizenship by naturalization, or out of wedlock to a mother who acquires citizenship by naturalization. Person him/ herself can revoke the acquisition within 1 year after reaching the age of majority. n.a.

n.a.

n.a. n.a. n.a.

n.a. n.a. n.a. n.a.

n.a.

Naturalization Person is a former citizen who holds citizenship of another country or is (discretionary) stateless. Other conditions: person is resident in Surinam, serious attempt to renounce citizenship of another country after naturalization (unless legally impossible or unreasonable), and no danger to public order, morals or health. n.a. n.a.

n.a.

n.a. Automatic

n.a.

Surinam

341

Surinam

short description

Renunciation of citizenship Residence abroad Service in foreign army

modesloss

idmode

L01

L02 L03

A25 A26 A27

No provision sur 11(5)

sur 11(3)

articles

Refugees No provision Stateless or No provision unclear citizenship Special sur 9 achievements Public service No provision Financial assets No provision No provision Acquisition of citizenship for other reasons

A22 A23

A24

short description

idmode

articles

Surinam

modesacq

(Table continued)

n.a. Lapse

Release

procedure

Naturalization (discretionary) n.a. n.a. n.a.

n.a. n.a.

procedure

n.a. Person enters military service of another country without permission from Surinam. Loss can result in statelessness.

Person is a citizen of another country and resides abroad.

conditions

n.a. n.a. n.a.

Acquisition of citizenship is in the interest of Surinam.

n.a. n.a.

conditions

342 chapter 5

Loss of citizenship sur 13 by spouse No provision Annulment of maternity/ paternity

L13a

n.a.

n.a.

n.a.

Person is the minor child of someone who acquires citizenship of another country and shares in that acquisition. Loss cannot result in statelessness. n.a.

n.a.

n.a. n.a.

Lapse

n.a.

No provision

sur 11(2)

n.a. n.a.

n.a.

n.a.

Person acquired citizenship by being born in Surinam while holding another citizenship and the person did not do everything in his/her power to renounce the other citizenship.

Lapse

Lapse

Person enters government service of another country without permission from Surinam. Loss can result in statelessness. Person acquires citizenship of another country.

Lapse

No provision No provision

No provision

sur 11(2), 11(4) sur 11(6)

L12

L11

L10

L08 L09

L07

L06

L05

sur 11(5)

Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent

L04

Surinam

343

Adoption No provision Establishment No provision foreign citizenship Loss for other No provision reasons

L13b L14

L15

short description

idmode

articles

Surinam

modesloss

(Table continued)

n.a.

n.a. n.a.

procedure

n.a.

n.a. n.a.

conditions

344 chapter 5

Trinidad and Tobago (t&t)

345

Trinidad and Tobago (T&T) Discovered by Columbus, Trinidad was controlled by Spain for nearly 300 years until the late eighteenth century. It was conquered by Britain in 1797 and formally ceded by Spain in 1802.1 The islands of Trinidad and Tobago were merged by Britain on 1 January 1889, after having been separate Crown dominions since 1802 and 1814 respectively. T&T became an independent country within the Commonwealth on 31 August 1962.2 The nationality legislation of the country is at present dealt with in Chapter 2 of the 1976 Constitution and the 1976 Citizenship Act.3 Acquisition under mode A01b, whether automatically or by entitlement, results in citizenship by descent (Article 21 of the Constitution). This status allows citizens of T&T to transmit their nationality to children born abroad, provided that the child is registered by the parents or – in case the child has reached the age of majority – by the person him/herself. The child will thus be stateless during minority if he or she is not registered.4 Birth in T&T in principle leads to automatic acquisition of citizenship. Article 21 of the Constitution distinguishes those born in the country from those born abroad to Trinidadian parents. Where the former are citizens by birth, the latter are citizens by descent. This is in line with the British tradition as found in Articles 4–6 of the bna 1948 (in force at the time of Trinidadian independence) and Articles 1–4 of the current bna 1981. In Latin American countries, by contrast, both acquisition iure sanguinis and iure soli result in citizenship by birth.5 Renunciation of the citizenship of origin, as previously required by tri 7(2) and tri 12(3) of the 1976 Citizenship Act and applying to A18 and A06 respectively, is no longer a necessary condition for naturalization under these two modes of acquisition.

1 S.W. Meditz and D.M. Hanratty, Islands of the Commonwealth Caribbean, 166. 2 Fransman, 1319–1326. 3 The Constitution entered into force on 1 August 1976 and was last amended by Act 89 of 2000. See http://www.ttparliament.org/documents/1048.pdf. The Citizenship of the Republic of Trinidad and Tobago Act (Act 11 of 1976) entered into force on 31 July 1976 and was last amended by Act 66 of 2000. See http://www.immigration.gov.tt/Portals/0/Documents/ Citizenship%20Act%201.50.pdf. 4 See similarly in Latin America the case of Peru. 5 For example in Paraguay.

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tri 9 and 10 were repealed by an Act from 1978, meaning that from that moment onwards no nationality-related provisions exist on the issue of marriage with a citizen.6 The grounds for loss in T&T are fully in line with international standards on protection against statelessness. Renunciation of citizenship becomes invalid after six months if another citizenship has not been obtained by that time, which can be traced back to the bna 1948 and is a protection mechanism strongly endorsed by unhcr.7 Acquisition due to fraud can, however, result in loss of Trinidadian citizenship and subsequently statelessness, but this is one of the rare cases where international law accepts that an individual can end up without any nationality. Bibliography Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 215–216. Fransman, Laurie. Fransman’s British Nationality Law. West Sussex: Bloomsbury Professional, 2011, p. 1319–1326. 6 Confusingly, the version of the Trinidadian Citizenship Act on Refworld, the website of unhcr , still lists these Articles while at the same time claiming that the version includes all amendments up to 1981. Refworld is advised to replace the text by the freely available consolidated version. 7 See also the analysis in the chapters on A&B and Dominica.

short description

Descent (born in the country) Descent (born abroad)

idmode

A01a

Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth)

A02b

A05

A03a A03b A04

Birth in country (2nd generation)

A02a

A01b

Trinidad and Tobago

modesacq

n.a. n.a. n.a. n.a.

No provision

n.a.

Automatic

Automatic; Registration (entitlement)

n.a.

procedure

No provision No provision No provision

No provision

Const 17(1)–(2)

Const 17(3); tri 5, 8

No provision

articles

n.a.

n.a. n.a. n.a.

Person is born abroad to a citizen otherwise than by descent, or to a citizen in the service of T&T; Person is born abroad to a citizen by descent (registration by parent while person is a minor, or by the person him/herself within 1 year after reaching the age of majority). Person loses citizenship if oath of allegiance is not taken within 1 year after reaching the age of majority. Person is born in T&T. Unless born to a foreign diplomat and neither parent is a citizen, or one of the parents is an enemy alien and the child is born in a place then under occupation by the enemy. n.a.

n.a.

conditions

Trinidad and Tobago (t&t)

347

short description

Ordinary naturalization

Socialization based acquisition Spousal transfer Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives

idmode

A06

A07

A13 A14 A15

A12

A08 A09 A10 A11

Trinidad and Tobago

modesacq

(Table continued)

No provision No provision No provision

No provision

No provision No provision tri 6 No provision

No provision

tri 12

articles

conditions

n.a. n.a. n.a.

n.a.

n.a. n.a. Automatic n.a.

n.a. n.a. n.a.

n.a.

n.a. n.a. Person is a minor who is adopted by a citizen. n.a.

Naturalization Person has been resident in T&T for 12 months immediately prior to (discretionary) the application, and was either resident in T&T, or in government service, or had partly such residence and partly such service for 5 out of 7 years prior to the 12-month period. Other conditions: good character, full capacity, adequate knowledge of English and of the duties of a citizen, and oath of allegiance. Minister is explicitly allowed to waive certain requirements. n.a. n.a.

procedure

348 chapter 5

Restricted citizenship rights Citizenship of a specific country

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

A17

A19 A20 A21 A22 A23

A24

A18

Reacquisition

A16

No provision

No provision No provision No provision No provision No provision

tri 7

No provision

tri 11(2A), 11(2B); tri 11(2)

Person is a former citizen by birth or descent and has voluntarily acquired another citizenship or has renounced citizenship in order to acquire another citizenship; Person is a former citizen other than by birth or descent who lost citizenhip due to voluntary acquisition of citizenship of another country. Other conditions: good character, adequate knowledge of English and of the duties of a citizen, and oath of allegiance. n.a.

n.a.

n.a.

Registration Person is a Commonwealth citizen, a citizen of Ireland, or a British (discretionary) protected person and has either been resident in T&T, in the service of the government, or had partly such residence and partly such service for 5 years. Minister is explicitly allowed to waive residence requirements (but required minimum of 12 months). Other conditions: good character, full capacity, adequate knowledge of English and of the duties of a citizen, and oath of allegiance. n.a. n.a. n.a. n.a. n.a. n.a. n.a. n.a. n.a. n.a.

n.a.

Naturalization (discretionary); Naturalization (discretionary)

Trinidad and Tobago (t&t)

349

short description

Public service Financial assets Acquisition of citizenship for other reasons

idmode

A25 A26 A27

short description

Renunciation of citizenship

Residence abroad Service in foreign army

idmode

L01

L02 L03

modesloss Trinidad and Tobago

Trinidad and Tobago

modesacq

(Table continued)

No provision No provision

tri 16–17

articles

No provision No provision No provision

articles

n.a. n.a.

Declaration

procedure

n.a. n.a. n.a.

procedure

Person is of full capacity and is or becomes a citizen of another country. Renunciation only takes effect after registration by the authorities. If citizenship of another country is not acquired within 6 months from the date of registration, the renunciation will become invalid. n.a. n.a.

conditions

n.a. n.a. n.a.

conditions

350 chapter 5

Non-renunciation No provision (acquisition by naturalization) Loss of citizenship No provision by parent Loss of citizenship No provision by spouse

L10

L12

L11

L08 L09

L07

No provision tri 14(2)

No provision

No provision

Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition

L06

L05

Other service for No provision foreign country Acquisition of tri 11(1), foreign citizenship 11(2D)

L04

n.a.

n.a.

n.a.

n.a. Withdrawal

n.a.

n.a.

Withdrawal

n.a.

n.a.

n.a.

n.a. Person acquired citizenship by registration or naturalization based on fraud, false representation or concealment of a material fact. Loss can result in statelessness. n.a.

n.a.

Person acquires citizenship of another country otherwise than by marriage. Does not apply to citizens by birth or by descent. Loss cannot result in statelessness. n.a.

n.a.

Trinidad and Tobago (t&t)

351

Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

L13a

L15

L13b L14

short description

idmode

modesloss Trinidad and Tobago

(Table continued)

No provision

n.a.

n.a. n.a.

n.a.

No provision

No provision No provision

procedure

articles

n.a.

n.a. n.a.

n.a.

conditions

352 chapter 5

United States of America

353

United States of America1 The first British settlers arrived in the early seventeenth century and the first enduring plantation was founded on 24 May 1607 in Jamestown, Virginia.2 The United States declared its independence on 4 July 1776, which was subsequently followed by a seven-year Revolutionary War.3 The first legislation dealing with citizenship is the 1790 Naturalization Act.4 The acquisition and loss of u.s. citizenship is regulated in different documents. There is, on the one hand, Article 1, section 8, paragraph 4 of the u.s. Constitution, which states that Congress shall have the power to establish a uniform rule of naturalization, as well as the Fourteenth Amendment to the Constitution, which states in section 1 that ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof’ are citizens. On the other hand, there is the legislation enacted by Congress – for our purposes meaning the 1952 Immigration and Nationality Act (ina), Title III, Chapter 1.5 It is probably best to start with some definitions and distinctions relevant to u.s. citizenship law – namely the meaning of the ‘United States’ and its 1 This chapter analyses the nationality legislation of the United States solely against the backdrop of the twenty-seven modes of acquisition and fifteen modes of loss of citizenship as developed by eudo Citizenship. A separate manuscript currently being prepared will, however, elaborate considerably on the issues raised here. As a result, the bibliographic details are, for the moment, rather minimal and only refer to key publications on the subject. 2 H. Brogan, The Penguin History of the usa, 2nd ed. (London: Penguin, 1999), 18. It should be remembered, however, that the Spanish had arrived in North America many decades earlier and that a considerable part of the American South – stretching from ocean to ocean – had been given as adelantamiento (civilian authority) to conquistador Pánfilo de Narváez by the Spanish king in 1520. See A. Reséndez, A Land So Strange. The Epic Journey of Cabeza de Vaca (New York: Basic Books, 2007), 73. See also C. Woodard, American Nations. A History of the Eleven Rival Regional Cultures of North America, 23. 3 R. Beeman, ed.  The Declaration of Independence and the United States Constitution        (New York: Penguin civic classics, 2012), xxi. The English literature on the revolutionary period is enormous and easily accessible. Useful analyses in Spanish are the contributions by David Armitage (who stresses the role of the Swiss jurist Emer de Vattel in the American independence movements from 1760–1840) and Pauline Maier (with a particular emphasis on the role of Thomas Jefferson) in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 19–40, 111–120. 4 F.G. Franklin, The Legislative History of Naturalization in the United States – Revolutionary War to 1861(Chicago: The University of Chicago Press, 1906), 48. 5 The Constitution as well as the amendments can be found at http://pdba.georgetown .edu/constitutions/usa/usa.html. The ina is available at http://www.uscis.gov/portal/site/ uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=f3829c7755cb9010Vg nVCM10000045f3d6a1RCRD.

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‘outlying possessions’ and the distinction between citizens and nationals. As regards the question of u.s. territory, 101(a)38 ina provides as follows: The term ‘United States’, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands. 101(a)29 ina in turn states: ‘The term “outlying possessions of the United States” means American Samoa and Swains Island’. The second distinction that is important for u.s. citizenship law is the distinction between citizens and nationals. While Sections 301–307 ina list the categories of persons who are nationals and citizens of the United States at birth, Section 308 provides that persons born in outlying possessions of the United States are nationals but not citizens.6 u.s. citizens have unrestricted access to U.S. territory as well as full voting rights; u.s. nationals, by contrast, do not have voting rights in federal and state elections. ina 301(c), (d) and (g) list different grounds for the acquisition of citizenship for children born abroad (A01b), depending on the citizenship situation of the parents and the parents’ previous residence in the United States. The corresponding provisions in case the parents are nationals instead of citizens are found in ina 308(2) and (4). Importantly, there is no statelessness protection mechanism in place for children born abroad to a u.s. citizen parent who does not meet the residence requirements under the law. According to the organization ‘American Citizens Abroad’, referring to what so far seems to have been the only study conducted on the matter, 40,000 children were born abroad to a citizen parent in 1981. While 90 percent of this group acquired u.s. citizenship, 10 percent did not. In the words of the organization, in 1981, one out of every ten children born to a u.s. citizen parent abroad was denied u.s. citizenship at birth. The citizenship transmission problem is therefore obviously not a trivial one. Some of these babies were undoubtedly born stateless too, although the actual number is unknown because this was not a specific target in this study.7

6 Legomsky and Rodríguez, 1292. 7 http://americansabroad.org/files/8813/3589/8133/childcit.pdf. The study referred to was conducted in 1982 by the u.s.   State Department at the request of a Member of Congress.

United States of America

355

As regards mode A02a, ina 301(a) provides that a person born in the United States and subject to the jurisdiction thereof automatically becomes a citizen.8 The rule under ina 301(a) can be traced back to the Fourteenth Amendment to the Constitution, and citizens by virtue of having been born in the United States are therefore sometimes referred to as ‘Fourteenth Amendment citizens’. The debate on the correct interpretation of the Fourteenth Amendment was settled by the Supreme Court in United States v. Wong Kim Ark.9 Should the person be born in an outlying possession, however, the person is not a citizen but a national (ina 308(a)). Such a person can nonetheless be a citizen if born to a parent who is a citizen and who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the person’s birth (ina 301(e)). A rule for foundlings (A03a) is laid down in ina 301(f), which states that a person found in the United States of unknown parentage and younger than five years will automatically become a citizen. If found in an outlying possession, the person becomes a national under ina 308(3). The fact that any child born or found in the United States automatically becomes a citizen, irrespective of the migration status of the parent(s) or whether the child might also acquire another citizenship iure sanguinis, means that there is no need in the United States for mode A03b. United States citizens who do not acquire their nationality through birth on u.s . soil are not ‘Fourteenth Amendment citizens’ and their citizenship status is, therefore, not regulated by the Constitution but by Congress – for our purposes meaning the ina. This implies a weaker form of judicial review, as we shall see, since it has traditionally been the Supreme Court’s practice under the doctrine of plenary power that the field of immigration and naturalization is not reviewed with the same level of scrutiny as other fields.10 The relevant provision for mode A04 (children born out of wedlock) is Section 309(a) ina, which is worth quoting in its entirety.11 Under this provision a person born abroad and out of wedlock will acquire u.s. citizenship if 8

9 10

11

There has been a heated debate in the literature on the meaning of ‘subject to the jurisdiction thereof’, with some authors arguing that this excludes children born to illegally residing aliens. See e.g. Schuck and Smith. United States v. Wong Kim Ark, 169 u.s. 649 (1898). See also Salyer. According to McFarland (at 495), ‘The Supreme Court typically declines to seriously review immigration matters – including derivative citizenship [i.e. acquisition iure sanguinis] – because of the plenary power doctrine’, which can result in upholding rules that would be unacceptable if applied to citizens. Or 8 u.s.c. §1409(a). Confusingly, the United States uses two different reference systems. See http://www.uscis.gov/laws/immigration-and-nationality-act.

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(1) a blood relationship between the person and the father is established by clear and convincing evidence, (2) the father had the nationality of the United States at the time of the person’s birth, (3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and (4) while the person is under the age of 18 years (A) the person is legitimated under the law of the person’s residence or domicile, (B) the father acknowledges paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a competent court. …. (c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year. In Nguyen the Supreme Court upheld the differential treatment of men and women under this section.12 While children born abroad and out of wedlock to a citizen father and a non-citizen mother would have to meet the above-listed requirements, children born to a citizen mother would, as was just seen, acquire u.s . citizenship ‘if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year’. A minority of four Justices fiercely dissented in Nguyen, attacking among other things the added value of Section 309(4) as well as the time limit: It is difficult to see what §[309](a)(4) accomplishes in furtherance of ‘assuring that a biological parent–child relationship exists’…that §[309](a)(1) does not achieve on its own. The virtual certainty of a biological link that modern dna testing affords reinforces the sufficiency of §[309](a)(1)… 12   Nguyen v. ins, 533 u.s. 53 (2011).

United States of America

357

It is also difficult to see how §[309](a)(4)’s limitation of the time allowed for obtaining proof of paternity substantially furthers the assurance of a blood relationship. Modern dna testing, in addition to providing accuracy unmatched by other methods of establishing a biological link, essentially negates the evidentiary significance of the passage of time.13 Legal doctrine has been critical as well, arguing that Section 309(a) discriminates against the caring father who wants to convey his citizenship but did not know about the law or recognized until too late the importance of U.S. citizenship for his children; but is also discriminates in favor of the careless father by making it easier for him to ignore his overseas, out-of-wedlock offspring.14 The conditions regarding the time limit and financial support are equally problematic. The Court held that the rationale for setting the time limit at age eighteen was that it helped to prevent u.s. citizen fathers from fraudulently claiming paternity. After all, acknowledgment of paternity would imply financial liability for the child. But it can equally be argued that the additional requirement of financial support deters biological fathers from acknowledging their illegitimate children. ‘As much as we may condemn such irresponsible parental behaviour’, it has been commented by Cornelia Pillard and Alexander Aleinikoff, ‘the truth is that Section 309(a)(3) gives irresponsible u.s. fathers valuable financial freedoms that it denies to u.s. mothers’.15 The legislation on naturalization is rather detailed in the United States and covered by Sections 310 to 347 of the ina. The most important requirements are listed in the overview table and include five years of continuous residence in the country. Five years’ residence is the period most common in the Western Hemisphere and applicable in eleven other countries as well. The table reads ‘no provision’ in respect of mode A16. While this can easily be explained if we remember the rationale of the country tables, it is not entirely correct. To repeat the purpose of the tables, they list the grounds for acquisition and loss that are non-transitory and have an erga omnes application. Section 324 ina, in contrast, which is the relevant provision dealing with the reacquisition of U.S. citizenship does not meet these basic requirements since it is concerned only with women who previously lost citizenship by marriage to an alien. 13 14 15

Justice O’Connor, dissenting. Emphasis in original. Pillard and Aleinikoff, 23. Ibid., 24.

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It is very important to point out the discrepancy under U.S. law between the grounds for loss found in the Immigration and Naturalization Act and the interpretation of these grounds since at least 1990, when the State Department issued a guideline stating that denationalization could only result from the express will and cooperation of the U.S. citizen.16 To start with the law in theory, ina 349 lists as grounds for loss the acquisition of citizenship of another country (L05), making a formal declaration of allegiance to a foreign state or is convicted of treason (L07), rendering services to another country (L04) and entering the armed forces of another country (L03). The practice, however, has developed in a way that those grounds for loss only apply if these acts were performed voluntarily and with the intention to relinquish U.S. citizenship. Hence the title of Patrick Weil’s book – The Sovereign Citizen – that is, loss of U.S. citizenship can only result from the express will of an American citizen him or herself. In that connection, it might be useful to quote directly from the website of the Department of State, where the following is written: The Department has a uniform administrative standard of evidence based on the premise that U.S. citizens intend to retain United States citizenship when they obtain naturalization in a foreign state, subscribe to a declaration of allegiance to a foreign state, serve in the armed forces of a foreign state not engaged in hostilities with the United States, or accept non-policy level employment with a foreign government.17 The United States does not at present have a facilitated naturalization procedure in place for refugees and stateless persons (A22 and A23). But a 2012 report by unhcr and Open Society Justice Initiative refers to current developments on this matter. The first comprehensive legislative solution that would provide a pathway for stateless individuals residing in the United States to obtain lawful status was introduced in 2010 and again in 2011, as part of a larger bill known as the Refugee Protection Act (rpa). These provisions relating to statelessness authorize the Secretary of Homeland Security and the Attorney General to ‘provide conditional lawful status to [certain stateless individuals] who [are] otherwise inadmissible or deportable from the United States’. Under these provisions, five years after a grant of

16 Spiro (2005), 163. 17 http://travel.state.gov/law/citizenship/citizenship_778.html.

United States of America

359

conditional resident status, a stateless individual becomes eligible to apply for Lawful Permanent Resident (lpr) status. Once the application for lpr status is approved, the individual becomes immediately eligible to apply for u.s citizenship.18 Bibliography Aleinikoff, T. Alexander. Semblances of Sovereignty. The Constitution, the State, and American Citizenship. Cambridge, Massachusetts: Harvard University Press, 2002. Aleinikoff, T. Alexander, David A. Martin, Hiroshi Motomura and Maryellen Fullerton. Immigration and Citizenship. Process and Policy. St. Paul, mn: West Publishing, 2011, chapter 1. Boswell, Richard A. Immigration and Nationality Law. Cases and Materials. 4th ed. Durham: Carolina Academic Press, 2010, chapter 11. Ferid, Murad and Dieter Blumenwitz. Das Staatsangehörigkeitsrecht der Vereinigten Staaten von Nordamerika. Frankfurt am Main: Alfred Metzner Verlag, 1975. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 236–250. Kettner, James H. The development of American citizenship, 1608–1870. Chapel Hill, nc: University of North Carolina Press, 1978. Legomsky, Stephen H. and Cristina M. Rodríguez. Immigration and Refugee Law and Policy. 5th ed. New York: Foundation Press, 2009. McFarland, Michael G. “Derivative Citizenship: Its History, Constitutional Foundation, and Constitutional Limitations.” New York University Annual Survey of American law 63 (2008): 467–510. Motomura, Hiroshi. Americans in Waiting. The Lost Story of Immigration and Citizenship in the United States. New York: Oxford University Press, 2006. Pillard, Cornelia T.L. and T. Alexander Aleinikoff. “Skeptical Scrutiny of Plenary Power: Judicial and Executive Branch Decision Making in Miller v Albright.” Supreme Court Review no. 1 (1998): 1–70 Salyer, Lucy E. “Wong Kim Ark: The Contest over Birthright Citizenship.” In Immigration Stories, edited by Peter H. Schuck and David A. Martin. 51–85. New York: Foundation Press, 2005. Schuck, Peter H. and Rogers M. Smith. Citizenship Without Consent. Illegal Aliens in the American Polity. New Haven: Yale University Press, 1985.

18

Brackets in original. UNHCR/Open Society Justice Initiative, 29.

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Seckler-Hudson, Catheryn. Statelessness: with special reference to the United States. Washington dc: American University Graduate School, 1934. Shachar, Ayelet. The Birthright Lottery. Citizenship and Global Inequality. Cambridge, Massachusetts: Harvard University Press, 2009. Smith, Rogers M. Civic Ideals. Conflicting Visions of Citizenship in U.S. History. New Haven: Yale University Press, 1997. Spiro, Peter J. “Afroyim: Vaunting Citizenship, Presaging Transnationality.” In Immigration Stories, edited by Peter H. Schuck and David A. Martin. 147–168. New York: Foundation Press, 2005. ——. Beyond Citizenship. American Identity After Globalization. New York: Oxford University Press, 2008. unhcr and Open Society Justice Initiative. “Citizens of Nowhere. Solutions for the Stateless in the U.S.” 2012. http://www.unhcr.org/refworld/docid/50c620f62 .html. Weil, Patrick. The Sovereign Citizen. Denaturalization and the Origins of the American Republic. Philadelphia: University of Pennsylvania Press, 2013.



Comparative Studies that Include the United States

Aleinikoff, T. Alexander and Douglas Klusmeyer, eds. From Migrants to Citizens. Membership in a Changing World. Washington d.c.: Carnegie Endowment for International Peace, 2000. de Hart, Betty. Een tweede paspoort: dubbele nationaliteit in de Verenigde Staten, Duitsland en Nederland. Amsterdam: Amsterdam University Press, 2012. Martin, David A. and Kay Hailbronner, eds. Rights and duties of dual nationals: changing concepts and attitudes. The Hague: Kluwer Law International, 2003. Stiller, Martin. Eine Völkerrechtsgeschichte der Staatenlosigkeit: Dargestellt anhand ausgewählter Beispiele aus Europa, Russland und den usa. PhD diss, Wien: Springer, 2011. Weil, Patrick and Randall Hansen, eds. Dual Nationality, Social Rights and Federal Citizenship in the us and Europe. New York: Berghahn Books, 2002. Wiessner, Siegfried. Die Funktion der Staatsangehörigkeit: eine historischrechtsvergleichende Analyse unter besonderer Berücksichtigung der Rechtsordnungen der usa, der UdSSR und der Bundesrepublik Deutschland. PhD diss, Tübingen: Eberhard-Karls-Universität zu Tübingen, 1989.

Descent (born in the country) Descent (born abroad)

A01a

Birth in country (3rd generation) Foundlings

Born stateless

A02b

A03b

A03a

Birth in country (2nd generation)

A02a

A01b

short description article

idmode

No provision

ina 301(f)

No provision

ina 301(a); ina 301(e)

ina 301(c); ina 301(d); ina 301(g)

No provision

usa

modesacq

n.a.

Automatic

n.a.

Person is found in the us of unknown parentage and is younger than 5 years. n.a.

Person is born abroad to two citizens one of whom had residence in the us or its outlying possessions prior to the person’s birth; Person is born abroad to a citizen who has been physically present in the us or its outlying possessions for a continuous period of 1 year prior to the person’s birth, and the other parent is a national, but not a citizen; Person is born abroad to an alien and a citizen and the latter was, prior to the person’s birth, physically present in the us or its outlying possessions for a total period of at least 5 years, at least 2 of which were after attaining the age of 14. (Residence abroad in a certain capacity may be counted to satisfy the physical-presence requirement.) Person is born in the us; Person is born in an outlying possession of the us to a parent who is a citizen and who has been physically present in the us or one of its outlying posses­ sions for a continuous period of 1 year at any time prior to the person’s birth. n.a.

Automatic; Automatic; Automatic

Automatic; Automatic

n.a.

conditions

n.a.

procedure

United States of America

361

A06

ina 312, 316 and 334(b)

Person is born out of wedlock to a father with whom a blood relationship is established by clear and convincing evidence, who was a citizen at the time of the person’s birth, and who has agreed in writing (unless deceased) to financially support the person until the age of 18. Other conditions while person is under the age of 18: person is legitimated, the father acknowledges paternity, or paternity is established by judicial ruling. Acquisition is automatic if person is born out of wedlock to a mother who was a citizen at the time of the person’s birth and had previously been physically and continuously present in the us or one of its outlying possessions for 1 year. n.a.

conditions

Naturalization Person has been resident in the us for a continuous period of 5 years. (discretionary) Other conditions: knowledge of fundamentals of the English language and the history and form of government of the us, good morals, attachment to principles of the Constitution, well disposed to the good order and happiness of the us, and oath of loyalty.

n.a.

Birth in country (acquisition after birth) Ordinary naturalization

A05

No provision

Establishment of paternity

A04

procedure Automatic

short description article

idmode

ina 309

usa

modesacq

(Table continued)

362 chapter 5

Spousal transfer

Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition

A08

A09 A10 A11

A16

A13 A14 A15

A12

Socialization based acquisition

A07

No provision

No provision No provision No provision

No provision

No provision No provision No provision

ina 319

ina 320(a); ina 322

n.a.

n.a. n.a. n.a.

n.a.

n.a.

n.a. n.a. n.a.

n.a.

Person is the minor child of a citizen who has parental authority and the child legally and permanently resides in the us; Person is the minor child of a citizen AND (1) the parent has been physically present in the us or its outlying possessions for a total period of at least 5 years, at least 2 of which were after attaining the age of 14, OR (2) that parent him/herself had a parent who has been physically present in the us or its outlying possessions for a total period of at least 5 years, at least 2 of which were after attaining the age of 14, AND the child is resident abroad but is temporarily and lawfully present in the us. Naturalization Person has been the spouse of a citizen and resident in the us for 3 years (discretionary) with common household. (Residence requirement can be waived under certain circumstances.) Other conditions: see A06. n.a. n.a. n.a. n.a. n.a. n.a.

Automatic; Naturalization (entitlement)

United States of America

363

A26 A27

A25

A24

A22 A23

A19 A20 A21

Financial assets Acquisition of citizenship for other reasons

Refugees Stateless or unclear citizenship Special achievements Public service

Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence

A17

A18

short description article

idmode

No provision No provision

ina 328

No provision

No provision No provision

No provision No provision ina 312(b)2

No provision

No provision

usa

modesacq

(Table continued)

Naturalization (discretionary) n.a. n.a.

n.a.

n.a. n.a.

n.a. n.a. Naturalization (discretionary)

n.a.

n.a.

procedure

Person has served at any time in the armed forces for a total period of at least 1 year. Other conditions: see A06 (except residence requirement). n.a. n.a.

n.a.

n.a. n.a. Person is over the age of 50 or 55, respectively, and has been living in the us for a total period of at least 20 or 15 years, respectively, subsequent to a lawful admission for permanent residence. Other conditions: see A06 (except language requirement). n.a. n.a.

n.a.

n.a.

conditions

364 chapter 5

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences

L01

L08

L07

L06

L05

L04

L02 L03

short description articles

idmode

procedure

n.a.

No provision

ina 340(c)

Nullification

n.a.

n.a.

No provision

No provision

n.a.

n.a. n.a.

No provision

No provision No provision

ina 349(a)5–6 Renunciation

usa

modesloss

Person has become, within 5 years of naturalization, a member of an organization whose membership would have precluded naturalization. Loss can result in statelessness.

n.a.

n.a.

n.a.

n.a.

n.a. n.a.

No other conditions. Loss can result in statelessness.

conditions

United States of America

365

Fraudulent acquisition

Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

L09

L10

L15

L13b L14

L13a

L12

L11

short description articles

idmode

No provision

n.a.

n.a. Lapse

n.a.

No provision

No provision ina 301(f)

Lapse

Lapse

n.a.

Nullification

procedure

ina 340(d)

ina 340(d)

No provision

ina 340(a)

usa

modesloss

(Table continued)

n.a.

n.a. Person acquired citizenship as a foundling and he/she is proved, before attaining the age of 21, not to have been born in the us.

Person’s parent loses citizenship under mode L08 or L09. Loss can result in statelessness. Person’s spouse loses citizenship under mode L08 or L09. Loss can result in statelessness. n.a.

Person’s naturalization was illegally procured or procured by concealment of a material fact or willful misrepresentation. Loss can result in statelessness. n.a.

conditions

366 chapter 5

Uruguay

367

Uruguay Uruguay, the smallest republic in South America after Surinam,1 was created on 27 August 1828 to form a buffer between Argentina and Brazil. The decades preceding nationhood were hectic for Uruguay and have been summarized by Hecker as follows: The Banda Oriental del Uruguay (the eastern side, or bank of the Uruguay river) declared itself independent from Spain in 1811, joined Argentina in 1813, was occupied by Portugal on 1819 and annexed in 1821, joined Brazil in 1824, was an Argentinean province again from 1825 and became independent in 1828 as a result of a treaty concluded between Argentina and Brazil.2 The balance of power between the latter two countries was simply too evenly divided, John Lynch writes, ‘for either to win a clear victory [in war]. For lack of alternatives, therefore, [Uruguay] emerged as a nation independent of both its larger neighbours’,3 and thereby became the last country in Latin America to be created from the Spanish colonies.4 The first Uruguayan Constitution, which also addressed matters of nationality, was enacted on 18 July 1830 and was only replaced by a new one in 1918.5 Current nationality law is dealt with in Chapter 3, Section  3 of the 1966 Constitution and the 1989 Nationality Act.6 Like Paraguay, Uruguay refers to citizens by birth as naturales. But where Paraguay does not have a separate term for naturalized citizens – they are simply personas de nacionalidad paraguaya por naturalización – Uruguay refers to them as legales. José Korzeniak explicitly observes that naturalization is a right under Uruguayan law when the applicant meets the conditions.7 The term nacionales, in turn, is reserved for children born abroad to Uruguayan parents who themselves were born abroad. Under no circumstances 1 R.A. Hudson and S.W. Meditz, Uruguay, a country study, 2nd ed. (Washington, d.c.: Federal Research Division of the Library of Congress, 1992), xxiii. 2 Hecker, 217. See also Marcela Ternavasio in A. Ávila, J. Dym, and E. Pani, eds., Las Declaraciones de Independencia, 215. 3 J. Lynch, The Spanish American Revolutions 1808–1826, 102–104. 4 R.A. Hudson and S.W. Meditz, Uruguay, xxvi. 5 Moosmayer, 91. This publication from 1971 also mentions that the doctrinal ‘penetration’ of the field of nationality law had advanced very little in Uruguay, although more has admittedly been published on the matter since. 6 The Constitution entered into force on 27 November 1966 and was last amended on 31 October 2004. See http://pdba.georgetown.edu/constitutions/uruguay/uruguay.html. The Nationality Act (Ley no. 16.021) entered into force on 17 April 1989 and is available at http:// www0.parlamento.gub.uy/leyes/AccesoTextoLey.asp?Ley=16021&Anchor=. 7 Korzeniak, 365. ‘El otorgamiento de la ciudadanía legal…no es un acto de “gracia,” sino el reconocimiento de un derecho’.

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will they be considered naturales, but they shall be ‘nacionales born outside national territory’ (uru 3).8 On a comparative note, it is observed that the term nacional thus has a completely different meaning in Uruguay than in Colombia, where it refers to citizens by naturalization. Persons born to a Uruguayan parent who him/herself was born in Uruguay will, irrespective of their place of birth, be considered naturales (uru 2). In comparison with neighbouring country Argentina, it is worth emphasizing that Uruguay does not explicitly exclude children born in the country to foreign diplomats from automatically acquiring Uruguayan citizenship. An explanation may be that Uruguay simply adheres in an implicit way to the Optional Protocol to the 1961 Vienna Convention on Diplomatic Relations, which provides in Article II that ‘Members of the mission not being nationals of the receiving State, and members of their families forming part of their household, shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State’.9 Article 81 of the Constitution is crystal clear about the impossibility of losing Uruguayan nationality, ‘not even upon naturalization in another country’. This also implies that nationality cannot be renounced. As regards loss of nationality, therefore, Uruguayan law is very similar to Argentinean and Costa Rican law. Bibliography Correa Freitas, Rubén. “Nacionalidad y ciudadanía en el régimen constitucional uruguayo.” Revista Jurídica – La Justicia Uruguaya 89 (1984): 11–13. ——. Derecho constitucional contemporáneo. 2nd ed. Montevideo: Fundación de Cultura Universitaria, 2002, p. 365–372. Esteva Gallicchio, Eduardo. Derecho constitucional II. Vol. VI, Montevideo: Editorial y Librería Jurídica A.M. Fernández, 1984, p. 96–110. ——. “Los nacionales de la Républica Oriental del Uruguay según la ley 16.021.” Revista Uruguaya de Derecho Constitucional y Político 5, no. 30 (1989): 620–625. Flores Dapkevicius, Rubén. Tratado de derecho constitucional. Vol. 1, Montevideo: La Ley Uruguay, 2010, p. 415–422. Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 217–223. 8 Ibid., 364. See critically on this ‘discrimination’ of children born abroad to Uruguayan parents who were not born in Uruguay, Correa Freitas (2002), 372. 9 http://treaties.un.org/doc/publication/UNTS/Volume%20500/v500.pdf.

Uruguay

369

Jiménez de Aréchaga, Justino. “Sobre nacionalidad y ciudadanía en la constitución de la república.” Revista de derecho público y privado (Montevideo) 19, no. 220 (1956): 214–236. ——. “Significación del vocablo ‘Uruguayo’.” Revista de Derecho, Jurisprudencia y Administración 55, no. 1–2 (1957): 41–42. Korzeniak, José. Primer curso de derecho público: derecho constitucional. 2nd ed. Montevideo: Fundación de Cultura Universitaria, 2002, p. 361–369. Moosmayer, Peter. Staatsangehörigkeitsrecht von Argentinien, Uruguay und Paraguay. Frankfurt am Main: Alfred Metzner Verlag, 1972. Pérez Pérez, Alberto. “Los ciudadanos legales no son extranjeros.” Revista Jurídica – La Justicia Uruguaya 111 (1995): 297–308. Risso Ferrand, Martín. Derecho constitucional. Vol. 1, Montevideo: Fundación de Cultura Universitaria, 2005, p. 747–772. Sandonato de Léon, Pablo. “Nacionalidad y Extranjería en el Uruguay, un Estudio Normo-Político.” Jurídica e Anuario (2007): 435–461. http://www.juridicas.unam .mx/publica/librev/rev/jurid/cont/37/pr/pr22.pdf.

short description

Descent (born in the country) Descent (born abroad) Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth) Ordinary naturalization

idmode

A01a

A06

A05

A03a A03b A04

A02b

A02a

A01b

Uruguay

modesacq

n.a.

n.a. n.a. n.a.

n.a.

Person is born abroad to a citizen and establishes residence in Uruguay. Person is born in Uruguay.

n.a.

conditions

Naturalization Person has had 3 years of habitual residence in Uruguay. Other (entitlement) conditions: good behaviour, have family in Uruguay (if not, 5 years’ residence is required), and work participation or capital/property in Uruguay.

n.a.

No provision

Const 75a–b

n.a. n.a. n.a.

n.a.

Automatic

Registration

n.a.

procedure

No provision No provision No provision

Const 74, uru 2–4 Const 74, uru 1 No provision

No provision

articles

370 chapter 5

A19 A20 A21 A22 A23

A18

A16 A17

A13 A14 A15

A12

A08 A09 A10 A11

A07

Socialization based acquisition Spousal transfer Filial transfer Adoption Transfer to other relatives Transfer from former citizen Spousal extension Filial extension Extension to other relatives Reacquisition Restricted citizenship rights Citizenship of a specific country Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship

No provision No provision No provision No provision No provision

No provision

No provision No provision

No provision No provision No provision

No provision

No provision No provision No provision No provision

No provision

n.a. n.a. n.a. n.a. n.a.

n.a.

n.a. n.a.

n.a. n.a. n.a.

n.a.

n.a. n.a. n.a. n.a.

n.a.

n.a. n.a. n.a. n.a. n.a.

n.a.

n.a. n.a.

n.a. n.a. n.a.

n.a.

n.a. n.a. n.a. n.a.

n.a.

Uruguay

371

short description

Special achievements Public service Financial assets Acquisition of citizenship for other reasons

Uruguay

short description

Renunciation of citizenship Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship

idmode

A24

A25 A26 A27

modesloss

idmode

L01

L05

L04

L02 L03

Uruguay

modesacq

(Table continued)

Const 81

No provision

No provision No provision

No provision

articles

No provision No provision No provision

Const 75c

articles

n.a.

n.a.

n.a. n.a.

n.a.

procedure

Naturalization (entitlement) n.a. n.a. n.a.

procedure

n.a.

n.a.

n.a. n.a.

n.a.

conditions

Person is granted citizenship for relevant merits or notable services rendered to Uruguay. n.a. n.a. n.a.

conditions

372 chapter 5

L15

L13b L14

L13a

L12

L11

L10

L08 L09

L07

L06

Non-renunciation foreign citizenship (acquisition by birth) Disloyalty or treason Other offences Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

No provision

n.a.

n.a. n.a.

n.a.

No provision

No provision No provision

n.a.

No provision

n.a.

n.a.

No provision

No provision

n.a. n.a.

n.a.

n.a.

No provision No provision

No provision

No provision

n.a.

n.a. n.a.

n.a.

n.a.

n.a.

n.a.

n.a. n.a.

n.a.

n.a.

Uruguay

373

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Venezuela ‘Although it was the first locale in which Christopher Columbus set foot on the mainland of the New World’, the Federal Research Division writes, ‘Venezuela was of only marginal consequence within the Spanish American empire during most of the next three centuries’.1 Venezuela’s historical significance in colonial times therefore lies first and foremost in being Simón Bolívar’s patria and for being the first country to formally declare independence from Spain on 5 July 1811.2 Following independence, the captaincy-general of Venezuela was merged with the viceroyalty of New Granada by Bolívar. The territory thus created, known as ‘Gran Colombia’ (Great Colombia), comprised what are now Colombia, Panama, Ecuador and Venezuela, but it had already disintegrated by 1830.3 It was therefore with the enactment of the 1830 Constitution that the first provisions regarding Venezuelan nationality can be found.4 At present, the rules pertaining to the subject are laid down in Chapter 2 of the 1999 Constitution and the 2004 Nationality Act.5 The 2004 Nationality Act defines nationality in its preamble as a ‘legal and political link that binds a person to a State’. Where considerable overlap can usually be witnessed in Latin American countries between the constitutional provisions relating to nationality and the provisions from the Nationality Act, Venezuelan law is unique in that the constitutional provisions appear to have been literally copied into the Act. Venezuelan nationality is, without exceptions, acquired automatically by birth on the country’s soil. The law also provides for acquisition iure sanguinis for children born abroad. This is only automatic if both parents are nationals. Venezuelan nationality can nonetheless be acquired by declaration in case the person takes up residence in Venezuela, which must happen while still a

1 R.A. Haggerty and H.I. Blutstein, Venezuela, a country study, 4th ed. (Washington, d.c.: Federal Research Division of the Library of Congress, 1993), 3. 2 M. Arana, Bolívar, 101. The classic fictional account of ‘the Liberator’ is of course G. García Márquez, The General in His Labyrinth, trans. E. Grossman (New York: Vintage, 1990). 3 E. Williamson, The Penguin History of Latin America, 589. 4 Moosmayer, 143. 5 The Constitution entered into force on 30 December 1999 and was last amended on 15 February 2009. See http://www.tsj.gov.ve/legislacion/constitucion1999.htm. The Nationality Act (Ley de Nacionalidad y Ciudadanía) entered into force on 1 July 2004 and is available at http://www.cne.gob.ve/registrocivil/uploads/repoDocs/bcc0cd14f60af13ddb9b0d0d6499 fc2c3f58b1a4_1293024524.pdf  or  http://www.derechos.org.ve/pw/wp-content/uploads/ ley_nacionalidad_ciudadania.pdf.

Venezuela

375

minor if the parent is a Venezuelan national by naturalization. It thus appears that a person who is born abroad to only one parent and does not take up residence in Venezuela might end up stateless, although legal doctrine is silent on the issue.6 Venezuelan nationality that was renounced in the past can be recovered solely by those who were citizens by birth (por nacimiento) (A16). Former citizens by naturalization will have to go through the naturalization process anew. It can be indirectly inferred from this rule that Venezuelan nationality cannot be reacquired when it was lost by nullification or withdrawal, since A16 only applies to cases in which nationality was previously renounced by the individual. Dual nationality is accepted both for Venezuelans naturalizing abroad (Article 34 of the Constitution) and for foreigners naturalizing in Venezuela. The latter have not been subject to the requirement of surrendering their nationality of origin since 1999.7 Venezuela’s system of facilitated access to its nationality for Spanish and Portuguese citizens as well as those from Latin American or Caribbean countries is hardly unique if we consider the rules in place under mode A18 in other countries in the American Hemisphere. Finding Italy in the list is perhaps more surprising, but is readily explainable by the fact that Italians were instrumental in the creation of Venezuelan identity and economic development.8 The other country in the Western Hemisphere with particularly strong bonds with Italy is Argentina, as is evident from the dual nationality treaty concluded between Italy and Argentina in 1971.9 According to Article 35 of the Constitution and ven 12, Venezuelans by birth can never be deprived of their citizenship. They can however renounce it on condition that they hold the citizenship of another country. While this effectively protects citizens by birth against statelessness, naturalized citizens are 6 Hernández Bretón and Sánchez de Vasini, for example, do not address possible statelessness when discussing acquisition iure sanguinis for children born abroad. 7 http://www.refworld.org/docid/3f7d4e4338.html. 8 See G. Santander Laya and R. Santander Garrido, Los italianos: forjadores de la nacionalidad y del desarrollo económico de Venezuela (Valencia (Venezuela): Vadell Hermanos Editores, 1978); P. Bruni and A. Filippi, Italia en Venezuela: Italia y los italianos en la nacionalidad vene­ zolana (Caracas: Monte Avila Editores Latinoamericana: Embajada de Italia en Venezuela, 1994). Also, the Italian Civil Code of 1942 exerted a significant influence on the Venezuelan Civil Code enacted in 1982. See M.L. Murillo, “The evolution of codification in the civil law legal systems: towards decodification and recodification,” J. of Transnational law and Policy 11, no. 1 (2001), 16. 9 Vonk, 298.

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not covered by the protection mechanism. Their renunciation of citizenship will also be accepted in case they have only requested – but not yet acquired – citizenship of another country. The table indicates that Venezuelan law has several grounds for loss, yet these only apply to naturalized citizens. Although naturalized Venezuelans are therefore treated differently from Venezuelans by birth, ven 24 states that when Venezuelans by naturalization entered Venezuela before the age of seven years and have permanently resided in the country until reaching the age of majority, they have exactly the same rights as Venezuelans by birth.10 This seems to mean that they are treated as Venezuelans by birth for the purposes of nationality law.11 Rendering military service to another country is not among the grounds for loss, but ven 52 does mention that this will result in the suspension of citizenship rights. Like Colombia, Venezuela provides for a time limit of ten years under mode L09.12 Bibliography Betancourt Prado, José Manuel. Nacionalidad de las personas naturales nacidas en el territorio Esquibo. Caracas: Universidad Santa Maria, 1999. [95 p; book deals with the grant of Venezuelan nationality to person born in ‘Guyana Esequiba’; contains maps with the territory of the area under consideration.] Brewer-Carías, Allan R. Régimen legal de nacionalidad, ciudadanía y extranjería. Caracas: Editorial Jurídica Venezolana, 2005. de San Cristóbal Sexton, Jacques. La Nacionalidad Venezuela. San Cristóbal: Universidad Católica Andrés Bello, 1973. Ferrer Rojas, Luis Enrique. “La doble nacionalidad en el ordenamiento constitucional venezolano.” Revista de la Facultad de Ciencias Jurídicas y Políticas, no. 5 (2009): 197–213. http://servicio.bc.uc.edu.ve/derecho/revista/5-2009/5-6.pdf. Grisanti, Carlos F. La nacionalidad a la luz de la legislación venezolana. Caracas: Tipografía americana, 1915.

10

11 12

‘Los venezolanos y venezolanas por naturalización que hubieren ingresado al territorio de la República antes de cumplir los siete (7) años de edad y hayan residido en él permanentemente hasta alcanzar la mayoridad, tendrán los mismos derechos que los venezolanos y venezolanas por nacimiento’. Hernández Bretón, 165. See the chapter on Colombia for more details.

Venezuela

377

Hecker, Hellmuth. Das Staatsangehörigkeitsrecht von Amerika. Frankfurt am Main: Verlag für Standesamtswesen, 1984, p. 224–235. Hernández Bretón, Eugenio. “Staatsangehörigkeit, Staatsbürgerschaft und Fremdenrecht in der Verfassung Venezuelas von 1999.” Das Standesamt 56, no. 6 (2003): 161–169. Herrera Mendoza, Lorenzo. Puede el venezolano cambiar de nacionalidad? Caracas: El Cojo, 1945. [71 p; deals with the right to renounce one’s nationality and discusses this question from a comparative and historical perspective; comparative analysis is not limited to the Spanish-speaking world.] Moosmayer, Peter. Staatsangehörigkeitsrecht von Kolumbien, Ekuador und Venezuela. Frankfurt am Main: Alfred Metzner Verlag, 1960. Rodriguez Franzkowiak, Araimi M. “Comparative Study on Nationality Law: Germany, the Netherlands and Venezuela with respect to Statelessness and Multiple Citizenships.” Bachelor’s thesis. Maastricht University: Faculty of Law, 2011. Parra-Aranguren, Gonzalo. La nacionalidad venezolana originaria. Caracas: Universidad Central de Venezuela, 1964. [Two tomes, together 684 p; very comprehensive analysis of Venezuelan nationality law; tome I covers the period 1810–1947; tome II deals with the constitutions of 1947, 1953 and 1961.] ——. La influencia del matrimonio sobre la nacionalidad de la mujer en la legislación venezolana. Biblioteca de la Academia de Ciencias Políticas y Sociales Serie Estudios. Caracas: Academia de Ciencias Políticas y Sociales, 1983. ——. La nacionalidad venezolana. Caracas: Universidad Central de Venezuela, 1983. [Consists of two volumes of around 1,300 pages in total; the first is entitled ‘antecedentes históricos’, the second ‘problemas actuales’; the author notes that these two tomes complement rather than replace his previous monographs.] ——. “Los efectos del matrimonio sobre la nacionalidad de la mujer en la constitución venezolana de 1961.” In Libro homenaje al doctor Eloy Lares Martínez. 1007–1085. Caracas: Universidad Central de Venezuela, 1984. Rouvier, Juan María. Nacionalidad y Extranjería en el derecho internacional privado. Maracaibo: Librería Roberto Borrero, 1987. Sánchez de Vasini, Pilar. “La Nacionalidad y los Conflictos de Nacionalidad en el Derecho Internacional Privado y la Legislación Venezolana.” In Temas de derecho internacional privado: Libro homenaje a Juan María Rouvier, edited by Fernando Ignacio Parra Aranguren. 893–909. Caracas: Tribunal Supremo de Justicia, 2003. Vonk, Olivier. Dual Nationality in the European Union. Leiden: Martinus Nijhoff Publishers, 2012.

A05

A03a A03b A04

A02b

A02a

Birth in country (2nd generation) Birth in country (3rd generation) Foundlings Born stateless Establishment of paternity Birth in country (acquisition after birth)

Descent (born in the country) Descent (born abroad)

A01a

A01b

short description articles

idmode

n.a. n.a. n.a. n.a.

No provision

n.a.

n.a.

n.a. n.a. n.a.

n.a.

Person is born abroad to two citizens by birth; Person is born abroad to a citizen by birth and establishes residence in Venezuela; Person is born abroad to a citizen by naturalization and establishes residence in Venezuela before reaching the age of 18 (declaration before the age of 25). Person is born in Venezuela.

Automatic; Declaration; Declaration

Automatic

n.a.

conditions

n.a.

procedure

No provision No provision No provision

Const 32(2), ven 9(2); Const 32(3), ven 9(3); Const 32(4), ven 9(4) Const 32(1), ven 9(1) No provision

No provision

Venezuela

modesacq

378 chapter 5

A15

A13 A14

A12

A09 A10 A11

Const 33(2), ven 21(2) No provision No provision No provision

No provision

Extension to other No provision relatives

n.a.

n.a. Naturalization (discretionary)

n.a.

Naturalization (discretionary) n.a. n.a. n.a.

n.a.

Const 33(1), Naturalization ven 21(1), 23 (discretionary)

Filial transfer Adoption Transfer to other relatives Transfer from No provision former citizen Spousal extension No provision Filial extension Const 33(3), ven 21(3), 22

Socialization based acquisition Spousal transfer

A07

A08

Ordinary naturalization

A06

n.a. Person is a minor whose parent acquires citizenship and has parental authority over the child. Child must declare his or her wish to be a citizen before the age of 21, and must have lived uninterruptedly in Venezuela for 5 years before making the declaration. n.a.

n.a.

n.a. n.a. n.a.

Person has been the spouse of a citizen for at least 5 years.

Person has been continuously resident in Venezuela for at least 10 years immediately prior to the application. ‘Favourable’ conditions for obtaining naturalization are: ownership of real estate in Venezuela or ownership of or partnership in a Venezuelan enterprise, parental authority over Venezuelan children, marriage to a Venezuelan citizen, and holding a degree from a Venezuelan university. n.a.

Venezuela

379

Reacquisition

Restricted citizenship rights Citizenship of a specific country

Cultural affinity Presumed citizens Very long residence Refugees Stateless or unclear citizenship Special achievements

A16

A17

A19 A20 A21

A24

A22 A23

A18

short description articles

idmode Declaration

procedure

Const 33(1), ven 21(1), 23(3), 23(8)

No provision No provision

No provision No provision No provision n.a. n.a.

Person has rendered services contributing to the public good, the economic and social development of Venezuela or humanity in general, or has special achievements on the national or international level as a scientist, artist or writer. Other conditions: see A06.

Naturalization (discretionary)

Person is a citizen of Spain, Portugal, Italy, or a Latin American- or Caribbean country, and has been resident in Venezuela for a continuous period of at least 5 years immediately prior to the application. Other conditions: see A06. n.a. n.a. n.a.

Person was a citizen by birth, has previously renounced citizenship, and has been resident in Venezuela for 2 years. Ordinary naturalization process applies if the person was a citizen by naturalization.

conditions

n.a. n.a.

n.a. n.a. n.a.

Const 33(1), Naturalization ven 21(1), 23 (discretionary)

Const 36, ven 16, 49

Venezuela

modesacq

(Table continued)

380 chapter 5

short description articles

Renunciation of citizenship

Residence abroad Service in foreign army Other service for foreign country Acquisition of foreign citizenship

idmode

L01

L02 L03

L05

L04

Venezuela

modesloss procedure

n.a. n.a.

Naturalization (discretionary)

n.a. n.a.

Const 34

n.a. n.a.

No provision

No provision No provision

Const 36, ven Declaration 13–15, 44–47

Financial assets Acquisition of citizenship for other reasons

A26 A27

Const 33(1), ven 21(1), 23(6) No provision No provision

Public service

A25

n.a.

n.a.

If person is a citizen by birth, he/she must be a citizen of another country. If person is a naturalized citizen, he/she must have requested or obtained citizenship of another country. In the latter case, loss can result in statelessness. Citizenship can be renounced in Venezuela or abroad. n.a. n.a.

conditions

n.a. n.a.

Person is resident in Venezuela within the context of governmental developmental activities. Other conditions: see A06.

Venezuela

381

Fraudulent acquisition Non-renunciation (acquisition by naturalization) Loss of citizenship by parent

L09

L11

L10

Other offences

L08

No provision

ven 41, 43, 48(8) No provision

ven 48(4)

n.a.

n.a.

Nullification

Withdrawal

Non-renunciation No provision n.a. foreign citizenship (acquisition by birth) Disloyalty or ven 48(1)–(3), Withdrawal treason 48(5)–(7)

L06

L07

short description articles

idmode

procedure

Venezuela

modesloss

(Table continued)

n.a.

Person is a citizen by naturalization who performed, collaborated to, or facilitated acts that (1) mock or scorn public authorities, or (2) are directed against Venezuelan interests, sovereignty, independence or security, or the Constitution. Loss can result in statelessness. Person is a citizen by naturalization who acquired citizenship with the aim of shirking national or international legislation. Loss can result in statelessness. Person is a citizen by naturalization who acquired citizenship based on false documents (time limit: 10 years). Loss can result in statelessness. n.a.

n.a.

conditions

382 chapter 5

L15

L13b L14

L13a

L12

Loss of citizenship by spouse Annulment of maternity/ paternity Adoption Establishment foreign citizenship Loss for other reasons

No provision

n.a.

n.a. n.a.

n.a.

No provision

No provision No provision

n.a.

No provision

n.a.

n.a. n.a.

n.a.

n.a.

Venezuela

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Comparative Conclusions by Individual Mode of Acquisition and Mode of Loss of Citizenship This final chapter serves the purpose of offering some comparative observations on each individual ‘mode of acquisition’ and ‘mode of loss’ of citizenship. As explained in the Introduction, the twenty-seven modes of acquisition and fifteen modes of loss have been developed by the European Union Democracy Observatory on Citizenship (eudo) to provide an analytical grid that allows for the possibility to capture all possible ways of acquiring and losing citizenship in a country. This does not mean, of course, that all countries also provide for these grounds for acquisition and loss in their legislation. In fact, it will be seen below that some of these grounds are non-existent in the Western Hemisphere. The analysis below does not elaborate on modes of acquisition and loss that are absent in the American region. Readers who nonetheless want to get an idea of the content of these particular modes are referred to the two online eudo databases on acquisition and loss of citizenship as well as the two complementary reports.1 Since this concluding chapter aims to be understandable as well to those who have not (yet) consulted the preceding chapters, the short-hand formulas adopted throughout the book will not be used and countries shall be referred to in non-abbreviated form. The only exceptions are Antigua and Barbuda (A&B), the Dominican Republic (dr), and Trinidad and Tobago (T&T). More information on the categories listed below can be found in the ‘typology’ table in Chapter 4. The ‘short descriptions’ from that table have been used below to clarify the content of the different modes of acquisition and loss. While these short descriptions were chosen for the sake of brevity, more elaborate descriptions can be found in the typology table. A01a: Descent (Born in the Country) Mode A01a is not particularly relevant in the American Hemisphere due to the prevalence of the ius soli principle over the ius sanguinis principle. This means that children born in the territory of a country acquire citizenship by that fact alone – that is, iure soli. That the child may be born in the territory to a citizen is irrelevant, and it does not mean that citizenship is acquired iure sanguinis. 1 See Chapter 1, Section 1.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004276413_007

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In such cases, for example that of Nicaragua, one might however say that the acquisition of citizenship rests on a double foundation. Ius soli being the general rule for thirty out of thirty-five countries under consideration, A01a is only a relevant mode for the remaining five countries, namely the Bahamas, Colombia, the dr, Haiti and Surinam. This is due to the fact that these countries either do not have ius soli at all, or only in restricted form (see infra A02a). The standard phrase under A01a would be that the ‘person is born in [name of the country] to a citizen’. This is the case in the Bahamas, Colombia and the dr. Variations are found in the two other countries. In Haiti, the person needs to be born to a citizen by birth who has never renounced Haitian citizenship; and in Surinam it is relevant whether the child is born in or out of wedlock. A01b: Descent (Born Abroad) As regards the transmission of nationality to persons born abroad to a citizen, the countries can broadly be categorized into four different groups: 1. 2.

3.

4.

Those that do not provide for acquisition iure sanguinis for persons born abroad to a citizen; Those that provide for unlimited acquisition iure sanguinis for subsequent generations born abroad to a citizen. Here we can make a further three-fold distinction between acquisition that is (i) automatic, (ii) by registration, or (iii) by registration/declaration with the additional requirement of taking up residence in the country of the parent’s nationality; Those that restrict acquisition iure sanguinis to the first generation born abroad. Here we should further distinguish between countries that require the parent to be a citizen iure soli (i.e. by birth in the country) and countries where the parent must be a citizen ‘otherwise than by descent’, which is broader in scope than the former category since it not only covers citizens iure soli but also includes citizens by naturalization and by registration; Those that restrict acquisition iure sanguinis to the second generation born abroad.

Category 1: No Transmission Iure Sanguinis Only Cuba and St Kitts do not provide for the transmission of its citizenship iure sanguinis to children born abroad to its nationals (unless the parents are diplomats).

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Category 2: Unlimited Transmission Iure Sanguinis At the other end of the spectrum we find the countries that allow citizenship to be transmitted indefinitely by descent (sometimes with an exception made for children born abroad to naturalized citizens). Following the above-mentioned distinction between acquisition that is either automatic, by registration, or by registration/declaration in combination with taking up residence in the country of the parent’s nationality, it is noted that acquisition is automatic in Belize, the dr, El Salvador, Guatemala, Honduras,2 Jamaica,3 Nicaragua, and Panama.4 A registration requirement, in contrast, is in force in Bolivia, Brazil, Colombia, and Costa Rica. Finally, acquisition under mode A01b is dependent on a declaration/registration after taking up residence in the country of the parent’s nationality in Panama (only when the child is born to a naturalized citizen),5 Paraguay and Uruguay. Category 3: Limited to the 1st Generation Born Abroad Countries that fall within this category either require the parent to be a citizen iure soli or a citizen ‘otherwise than by descent’. The following countries can be grouped into the former category: A&B, Argentina, Barbados,6 Dominica, and Ecuador. The countries that fall in the latter category, which has a broader scope because it includes parents born in the country as well as parents who acquired nationality through naturalization or registration are the Bahamas,7 Canada,8 Grenada, Guyana, Mexico, St Lucia, and St Vincent. Category 4: Limited to the 2nd Generation Born Abroad Only two countries fall in this category. Acquisition in Chile is automatic on the condition that at least one parent or grandparent acquired citizenship by birth in Chile, by ordinary naturalization, or by naturalization granted as a special favour. In Peru, on the other hand, acquisition is not automatic but 2 With an exception for children born abroad to naturalized citizens. 3 In Jamaica, acquisition iure sanguinis only applies if the parent (1) was born in Jamaica; (2) is a citizen by descent; or (3) is a citizen by registration by virtue of marriage. In short, the only case in which acquisition iure sanguinis does not apply is when the parent acquired citizenship by registration otherwise than by marriage or by naturalization. 4 In the case of Panama only when the child is born abroad to a citizen by birth. 5 With the additional requirement of establishing residence in Panama. 6 The rule is gender-discriminatory in Barbados. 7 The rule is gender-discriminatory in the Bahamas. 8 Canada has installed a safeguard for the 2nd generation born abroad, which can be used until the age of twenty-three by persons who are stateless. See for more details the country table for Canada.

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dependent on registration. Further conditions in that country are that the parent must be a citizen iure soli or iure sanguinis. The remaining countries – Haiti, St Kitts, Surinam, T&T, the United States, and Venezuela – are difficult to categorize on the basis of the just-mentioned scheme. I therefore refer back to what is stated in the respective country tables on this particular mode of acquisition. A02a: Birth in Country (2nd Generation) The Western Hemisphere is known for the omnipresence of the ius soli principle, applied by thirty out of thirty-five countries. We can nonetheless identify five countries that do not have ius soli at all or only in a limited form. The country that does not have a general ius soli provision is the Bahamas. Countries that do have ius soli but with restrictions are Colombia (where the parent has to be domiciled in the country), the dr (where a child does not acquire citizenship iure soli if his/her parent is a foreigner ‘in transit’ or resides illegally in the country), Haiti (where the parents’ ethnicity plays a role), and Surinam (where the person him/herself needs to be legally resident there). Of these countries, only Colombia, Haiti9 and Surinam have a protection mechanism for children born in the territory who would otherwise be stateless (A03b). A02b: Birth in Country (3rd Generation) Not found in the Western Hemisphere. A03a: Foundlings The countries that have a provision in their nationality legislation for foundlings found in the territory are in the minority, to wit A&B, Barbados, Belize, Canada, Costa Rica, Guyana, Haiti, Honduras, Mexico, Nicaragua, Paraguay, Peru, St Kitts, St Lucia, and Surinam. It is problematic, however, that the child needs to be a newborn infant in A&B, Barbados, Belize, Guyana, Honduras, and St Kitts.10 A03b: Born Stateless It was already noted above (under A02a) that Colombia, Haiti and Surinam have this ground for acquisition. The other countries that have a provision for A03b (A&B, Barbados, Guyana, St Kitts) also have automatic ius soli (A02a), which makes the relevance of this statelessness protection mechanism for children born in the country somewhat unclear. 9 10

The protection offered is very limited in Haiti. See para. 57–61 in unhcr Guidelines on Statelessness No. 4.

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A04: Establishment of Paternity Legal provisions on A04 were only found in the Bahamas, Barbados, Surinam, and the United States. The analysis in the chapter on the United States in particular gives some insights into the problems raised under this mode of acquisition. A05: Birth in Country (Acquisition after Birth) This mode of acquisition can of course only apply to countries that do not have automatic ius soli acquisition at birth or impose certain restrictions and/or exceptions – for example in relation to children of foreign diplomats. Based on our analysis of A02a, A05 could therefore possibly apply to the five non-ius soli countries (the Bahamas, Colombia, the dr, Haiti, and Surinam). As demonstrated in the different country tables, the Bahamas, Haiti and Surinam indeed have this ground for acquisition, while Colombia and the dr do not. Two other countries have A05 as well, namely Costa Rica and Nicaragua. This mode of acquisition is relevant in Costa Rica for persons born in the country to foreigners but who were not registered as a citizen before reaching the age of 25 years. In Nicaragua, A05 applies to children born in the country to foreign diplomats. They effectively have an option right to Nicaraguan citizenship, which does not exist in the other countries that explicitly exclude children of foreign diplomats from acquisition iure soli (e.g. Argentina). A06: Ordinary Naturalization Since the procedure for naturalization is normally a discretionary one that gives the administrative authorities much leeway, mode A06 is one of the most difficult grounds for acquisition to evaluate accurately based on the Citizenship Act alone. That being said, it is clear that the residence requirement for naturalization can differ rather substantially in the Western Hemisphere, with five years’ residence being most common. The minimum number of years requested for naturalization in each country is listed in brackets: • • • • • • • • •

Argentina, the dr and Peru (2); Bolivia, Canada, Ecuador, Honduras, Paraguay, and Uruguay (3); Brazil and Nicaragua (4); Belize, Chile, Colombia, Cuba, El Salvador, Guatemala, Haiti, Jamaica, Mexico, Panama, and Surinam (5); A&B, Barbados, Grenada, Guyana, and T&T (6); The Bahamas, Costa Rica, Dominica, and St Vincent (7); St Lucia (8); Venezuela (10); St Kitts (15).

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The remaining conditions are of course rather country-specific, although language and civics tests as well as an oath of loyalty are very common. It is also noted that the naturalization conditions in the English-speaking Caribbean are very similar. Since listing the idiosyncrasies of each and every country does not seem to serve a particularly useful purpose here, the respective country tables are referred to for more details. A07: Socialization-Based Acquisition Against the background of the very inclusive ius soli rule predominant in most countries in the American Hemisphere, one would assume that countries also adopt an inclusive stance towards persons who have spent a considerable amount of time in the country during childhood. This is what might be called ‘socialization-based acquisition of citizenship’. Considering that the Western Hemisphere is generally very inclusive towards children born on the territory, it is particularly striking that only Brazil, Peru and Surinam provide for this mode of acquisition. Some comparative remarks on the differences between Europe and the Americas as regards mode A07 are found at the end of the chapter on Canada. A08: Spousal Transfer Most countries under discussion have this ground for acquisition. Exceptions are Canada, Chile, Guatemala, Paraguay, T&T, and Uruguay. It should be stressed, however, that in some countries this mode only applies to foreign men marrying a female citizen (Argentina and Haiti), while it is the exact reverse in others (the Bahamas, Barbados and Surinam). In the dr, finally, foreign men are subject to stricter conditions than foreign women under mode A08. A09: Filial Transfer Filial transfer – not te be confused with filial extension (A14) – is a ground for acquisition in Brazil. Since no other countries in the American Hemisphere have A09, it is impossible to assess this ground for acquisition in an American context. It is therefore recommended to compare Brazil with mode A09 in the eudo Citizenship Database on Europe,11 which shows that seventeen out of forty-one European countries have this ground for acquisition. A10: Adoption Certainly not all countries have a separate provision for children being adopted by a citizen, and it was seen in the chapter on Argentina that some authors 11 http://eudo-citizenship.eu/databases/modes-of-acquisition.

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were of the opinion that adopted children find themselves in the same position as children born abroad to Argentinean parents (mode A01b). In countries that do have this ground for acquisition, namely A&B, the Bahamas, Barbados, Dominica, the dr, Ecuador, Grenada, Guyana, Haiti, Jamaica, Mexico, Panama, St Kitts, St Lucia, St Vincent, Surinam, and T&T, the ‘conditions column’ in the country tables normally reads that the person must be a minor and adopted by a citizen.12 A&B, the Bahamas and Barbados, however, have a genderdiscriminatory rule which states that the person must be a minor who is adopted by a citizen, or, in case of joint adoption to a male citizen. Surinam even takes this gender-discriminatory approach a step further by only granting citizenship to the adopted child if the adopting parent is a male citizen. A11: Transfer to Other Relatives Not found in the Western Hemisphere. A12: Transfer from Former Citizen Only found in Nicaragua. A13: Spousal Extension This mode, not to be confused with spousal transfer (A08), is found in a number of countries, of which only two are gender-neutral namely Guyana and St Kitts. In the four other countries by contrast – the Bahamas, Barbados, the dr, and Haiti – the mode only applies to female spouses of men who naturalize in those respective countries. A14: Filial Extension The following countries have filial extension – which is to be distinguished from filial transfer (A09) – as a ground for acquisition: Argentina, Belize, Canada, Chile, Colombia, Costa Rica, Cuba, the dr,13 Ecuador,14 Nicaragua,15 Surinam,16 and Venezuela. Despite some important differences between these countries, the principal elements are usually the same. Thus, common requirements are 12 13 14 15

16

Conditions can, however, differ slightly in the respective countries. In Dominica, for example, it is additionally required that the parent was born in the country. The rule is gender-discriminatory in the dr. The rule is gender-discriminatory in Ecuador. The child who acquires citizenship under A14 will have to choose between Nicaraguan citizenship and the citizenship of origin upon reaching the age of majority. Dual nationality is not accepted. Surinam distinguishes between children born in and out of wedlock.

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that the person eligible for filial extension is a minor, that the parent who acquires citizenship by naturalization has parental authority over the child, and that the child is included in the naturalization certificate. The latter requirement, however, is not explicitly found in all of the above-mentioned countries. Chile is noteworthy for imposing much stricter conditions than the others. A15: Extension to Other Relatives Only Belize has this mode of acquisition, which applies to ‘dependent’ relatives of an ‘economic citizen’ as defined under mode A26 (i.e. a person who has special financial assets or invests money in Belize). A16: Reacquisition The following countries have implemented legislation on the matter of reacquisition of citizenship: A&B, Bolivia, Brazil, Canada, Chile, Colombia, Cuba, Dominica, Ecuador, El Salvador, Guatemala, Jamaica, Mexico, Nicaragua, Peru, St Kitts, St Lucia, St Vincent, Surinam, T&T, and Venezuela. This is a mode for which any attempt to make comparative remarks is bound to fail. Not only do we witness a wide variety of procedures, from naturalization and registration to declaration (in e.g. Chile, A&B and Bolivia respectively), the conditions also differ considerably. Many countries, moreover, limit reacquisition to particular categories of former citizens (e.g. Colombia). A17: Restricted Citizenship Rights Not found in the Western Hemisphere. A18: Citizenship of a Specific Country Many countries have a rule granting facilitated access to their nationality for specific categories of foreign citizens. Exceptions are Argentina, Belize, Bolivia, Canada, Chile, Cuba, the dr, Haiti, Mexico, Paraguay, Peru, Surinam, the United States, and Uruguay. However, some of them have entered into separate dual nationality arrangements with other countries – most notably Spain.17 Argentina has additionally concluded a dual nationality treaty with Italy.18 We can basically distinguish four groups of countries with respect to mode A18: 1.

English-speaking countries that grant facilitated access to Commonwealth citizens and usually also to citizens of Ireland;

17 See O. Vonk, Dual Nationality in the European Union, Chapters 5 and 6. 18 Ibid.

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2.

Latin American countries that offer facilitated access to citizens of Iberoor Hispanoamerican countries; 3. Central American countries that offer different forms of facilitated access to citizens of Ibero- or Hispanoamerican countries, on the one hand, and fellow Central American countries, on the other; 4. The special case of Brazil, which offers facilitated access to other Portuguese-speaking countries. Groups 1, 2 and 4 are similar in that some or all of the requirements under A06 are usually dispensed with or applied in a less strict manner. Group 3 is particularly noteworthy for the absence of any real substantive requirements in case the applicant is from another Central American country. It is also worth pointing out the different procedures under A18. The procedure adopted by countries falling within group 1 is often a registration procedure, whereas groups 2 and 4 usually apply a naturalization procedure. Group 3 is again remarkable in that, with the exception of Costa Rica and Honduras, the procedure is by declaration where citizens of fellow Central American countries are concerned. Since the procedure is by declaration and not by naturalization or registration, acquisition of the citizenship of another Central American country generally also leads to the status of ‘citizen by birth’. A19: Cultural Affinity A fine line sometimes exists between modes A18 and A19 – that is, between a country granting facilitated access to its citizenship to persons holding the citizenship of a particular country (A18) or on the basis of cultural affinity (A19). That these two grounds for acquisition can nonetheless be distinguished becomes particularly clear from comparing them in the European database.19 The three cases where a ground for acquisition can be identified based on cultural affinity are Colombia, Ecuador and Guatemala. The latter interestingly counts residence in another Central American country as residence for the purpose of naturalization in Guatemala. A20: Presumed Citizens Not found in the Western Hemisphere. A21: Very Long Residence Only the United States has a provision for long-term residents. Persons over fifty or fifty-five years of age can, after a residence period of twenty and fifteen 19 http://eudo-citizenship.eu/databases/modes-of-acquisition.

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years respectively, apply for naturalization. While all ordinary naturalization requirements still need to be fulfilled, they are exempt from the language requirement. A22: Refugees Only Grenada and St Vincent have an explicit reference to refugees in relation to acquisition of citizenship, stating that political refugees can acquire citizenship under a discretionary procedure. It remains unclear what other conditions apply, if any, and the discretionary nature of the procedure leaves the effectiveness of this mode of acquisition very much in doubt. A23: Stateless or Unclear Citizenship What was just said with regard to mode A22 as applicable in Grenada and St Vincent equally applies to mode A23 in those countries. Thus, a stateless person can acquire the citizenship of Grenada and St Vincent under a discretionary registration procedure, the effectiveness of which remains unclear. The same is true for St Lucia. A23 in St Lucia only applies to minors who are stateless and the procedure is one of discretionary registration. No further conditions are mentioned in the law. Finally, the category of persons qualifying under the legislation of Barbados and Guyana is too specific to deserve separate mention here. The only country that has regulated A23 in a way similar to a number of European countries is Guatemala, where two years’ residence (instead of the normal five years) is required from persons who are stateless or of undetermined nationality.20

A24–A26: Special Achievements, Public Service, and Financial Assets/ Investment in the Country Modes A24 to A26 broadly address a similar issue – that is, the acquisition of citizenship because the foreign individual was of value to the country due to special achievements (A24), public services (A25) or financial assets (A26). Let us start with listing the countries that have implemented these grounds for acquisition. Acquisition due to special achievements is most common and is found in Argentina, Bolivia, Brazil, Canada, Chile, Costa Rica, Cuba, the dr, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Paraguay, Peru, Surinam, Uruguay, and Venezuela. Acquisition as a result of rendering public service, in turn, can be encountered in Argentina, Brazil, the dr, Guatemala,

20

On Europe, see O. Vonk, M. Vink, and G.-R. de Groot, “Protection against statelessness,” 63–66.

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Haiti, Honduras, St Vincent, the United States, and Venezuela. Possessing certain financial assets or investment in the country, finally, is a ground for acquisition of citizenship in A&B, Argentina, Belize, Brazil, Dominica, the dr, Grenada, Nicaragua, St Kitts, and St Vincent. To start with the last ground for acquisition (A26), we can observe that Brazil and the dr make ownership of real estate a ground for the acquisition of citizenship. Argentina, Belize, Nicaragua and St Vincent, on the other hand, refer in more concrete terms to the need for an ‘economic’ contribution by the individual in order to be eligible under this mode. Finally, it was seen in the respective country analyses on A&B, Dominica, Grenada, and St Kitts that these four States offer facilitated naturalization to investors – the so-called ‘economic citizenship’ or ‘investor citizenship’. As regards A25, a wide variety of services can allow individuals to fall under this mode. We can think of services rendered in the context of the armed forces (e.g. in the dr and Haiti), in the social and cultural fields (e.g. Guatemala), or in the diplomatic or other public service (e.g. in Argentina and St Vincent). Mode A24, finally, is a very broad category. The different provisions sometimes give very few leads as to what exactly are considered ‘special achievements’. Thus, Honduran law just states that the person must have rendered extraordinary services to the country. Other countries, such as Mexico and Venezuela, are somewhat more specific by referring to specific fields in which the individual must have excelled (e.g. sports or culture) in order to be eligible under this mode. A27: Acquisition of Citizenship for Other Reasons Mode A27, which is applicable in Bolivia, Canada, Colombia, Mexico, Panama, and St Vincent, is effectively a rest category for situations that for some reason do not fit into one of the other modes of acquisition. The conditions can sometimes be quite concrete, as in the case of Mexico, and sometimes very vague. Canadian citizenship, for example, can be acquired under a discretionary naturalization procedure if the person’s situation is one of ‘special and unusual hardship’. L01: Renunciation of Citizenship It was seen throughout the book that different international standards dictate that individuals should have the right to change their nationality.21 Yet several countries in the Western Hemisphere do not allow nationality to be renounced, 21

Most notably Article 15 of the Universal Declaration of Human Rights and Article 20(3) of the American Convention on Human Rights.

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namely Argentina, the dr, Costa Rica, Ecuador,22 Guatemala,23 Haiti,24 Honduras, Mexico, and Uruguay. This also means that a clear majority of countries do allow renunciation. These countries can be further divided into those that require the individual to hold citizenship of another country, so as to prevent statelessness, and those that do not provide for this protection mechanism. While A&B, the Bahamas, Barbados, Brazil, Canada, Dominica, Grenada, Guyana, Jamaica, St Kitts, St Lucia, St Vincent, Surinam, T&T, and Venezuela25 fall in the former category, Belize, Bolivia, Colombia, Cuba, Ecuador, El Salvador, Haiti, Nicaragua, Panama, Paraguay, Peru, and the United States fall in the latter. A further protection mechanism is in place in some of the countries belonging to the former group in the sense that the renunciation becomes invalid if citizenship of another country has not been acquired within a certain period of time – normally six months. This is the case in A&B, the Bahamas, Barbados, Dominica,26 Guyana, St Kitts, and T&T. L02: Residence Abroad This ground for loss is only encountered in Belize, the dr, Ecuador, El Salvador, Jamaica, Mexico, Paraguay, and St Vincent. In all these countries, loss due to prolonged residence abroad only applies to citizens by naturalization or registration and can result in statelessness. By legislating in this manner, the countries mentioned above in principle act in compliance with Article 7(4) of the 1961 Convention, the international norm relevant to this situation. Article 7(4) indeed permits the withdrawal of citizenship of naturalized citizens for prolonged residence abroad, even if the loss results in statelessness. However, the individual must in that case have resided abroad for more than seven years. Only the dr and Jamaica comply with this condition under Article 7(4) by requiring that the naturalized person resided for ten and seven years abroad, respectively. L03–L04: Service in Foreign Army or Other Service for Foreign Country Service in a foreign army is a relatively important ground for loss in Europe, where mode L03 is applicable in seventeen out of the forty-one countries 22 23 24 25 26

In Ecuador, renunciation is only possible for naturalized citizens. In Guatemala, renunciation is only possible if necessary to acquire citizenship of another country. In Haiti, renunciation is only possible for naturalized citizens who reside abroad. Venezuela only grants protection against statelessness to citizens by birth. In Dominica, the renunciation becomes invalid after twelve months.

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analyzed by eudo Citizenship.27 It is therefore somewhat remarkable that hardly any countries explicitly have this mode of loss in the Western Hemisphere. Only Surinam can be identified as doing so, where loss can also have the effect of rendering the individual stateless. This low number may partly be explained by the choice in this book to list ‘assistance to the enemy in war’ under L04 – that is, other service for a foreign country. As the countries providing for this ground for loss do not specifically state that assistance to the enemy in war has to be army-related, the L04 category seemed more appropriate than the L03 category. A&B, the Bahamas, Barbados, Brazil, Chile, Dominica, the dr, Grenada, Guyana, Haiti, Jamaica, Panama, St Kitts, St Lucia, St Vincent, and Surinam have the L04 ground for loss, which can potentially also render stateless the person whose nationality is revoked. L05: Acquisition of Foreign Citizenship Mode L05 – on loss due to acquisition of a foreign citizenship – illustrates most clearly a country’s stance on the issue of dual citizenship.28 The different country analyses show a clear trend towards the growing acceptance of this phenomenon in the Western Hemisphere. It is therefore not surprising that only a minority of countries currently have this ground for loss in one way or another, to wit the Bahamas, Belize, Brazil, Cuba, Guyana, Honduras, Mexico, Nicaragua, Panama, Paraguay, Surinam, and T&T. Some of these countries do not distinguish between citizens by birth and by naturalization (Cuba, Panama and Surinam), whereas others only apply L05 to naturalized citizens (Belize, Honduras, Mexico, and Paraguay). Still others only have this ground for loss for persons who acquire citizenship of another country otherwise than by marriage (the Bahamas, Guyana and T&T). Brazil and Nicaragua are special cases, as is demonstrated in their respective country tables and country analyses.

L06 and L10: Non-Renunciation of Foreign Citizenship (Acquisition either at Birth or by Naturalization) These grounds for loss can obviously only be encountered in countries that require the renunciation of any foreign citizenship upon becoming a citizen – be it when citizenship is acquired at birth (L06) or by naturalization (L10).

27 http://eudo-citizenship.eu/databases/modes-of-loss. 28 See for a global analysis https://macimide.maastrichtuniversity.nl/dual-citizenship -database.

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We can be brief about these modes of loss. Surinam has implemented legislation for L06, while only Cuba has done so for L10. L07: Disloyalty or Treason The reasons for loss of citizenship under this mode are generally more vague than for others. This is due to the intrinsically contentious nature of concepts like ‘disloyalty’ and ‘treason’. The countries where disloyalty or treason are a ground for loss are A&B, the Bahamas, Barbados, Belize, Brazil, Colombia, Dominica, the dr, Grenada, Guyana, Jamaica, Nicaragua, St Kitts, St Lucia, St Vincent, and Venezuela. It is seen in the country analyses that these countries have implemented a wide variety of rules under L07. Some common features can be identified, however, in that L07 only applies to citizens by naturalization and/or registration and can result in statelessness in all the above-mentioned countries. L08: Other Offences Several countries can be identified that have this ground for loss, namely A&B, the Bahamas, Barbados, Belize, Colombia, Dominica, the dr, Ecuador, Grenada, Guyana, Jamaica, Mexico, Nicaragua, St Kitts, the United States, and Venezuela. It is also seen that loss under L08 can generally render a person stateless, but that an exception sometimes applies. To use the formulation under Bahamian law, which is found in number of other countries as well, persons who, within five years of acquisition of citizenship, have been sentenced in any country to imprisonment for at least twelve months can lose their citizenship, unless this would render them stateless. Of all the countries that use his formulation, only Belize, Grenada and Jamaica allow this ground for loss to render a person stateless. L09: Fraudulent Acquisition This ground for loss stands out because the procedure by which citizenship is lost if it was acquired by fraud is – at least in Europe – frequently through nullification, meaning that the person never became a citizen in the first place. It is also the only ground for loss where international norms explicitly allow a person to be rendered statelessness. Mode L09 is found in A&B, the Bahamas, Barbados, Belize, Brazil, Canada, Colombia, Costa Rica,29 Dominica, the dr, Ecuador, Grenada, Guatemala, Guyana, Honduras, Jamaica, St Kitts, St Lucia, St Vincent, T&T, the United States, and Venezuela. Indeed, in all these 29

L09 is in fact the only mode of loss existent in Costa Rica.

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countries statelessness can result under this mode of loss. In contrast to Europe, the procedure is usually by withdrawal. As was seen in the chapters on Colombia and Venezuela, the time limit of ten years as applicable in those countries should be considered a best practice, since ‘the “genuine connection” principle calls for some limits as to the time period after which states can deprive persons of their citizenship, even if that citizenship is acquired by fraud’.30 The same can be observed, by the way, with regard to mode L08 as applicable in Colombia, which also limits the possible withdrawal of citizenship to a period of ten years. L11–L12: Loss of Citizenship by Parent or Spouse These modes are analyzed together here for the simple reason that they are hardly found in the Western Hemisphere. Belize and the United States are the only countries that allow a person to lose citizenship as a result of the parent or spouse losing Belizean or United States citizenship (modes L11 and L12 respectively). Surinam in turn only provides for loss by virtue of mode L11. It is noted that loss can result in statelessness in Belize and the United States but not in Surinam. L13a–L13b: Annulment of Paternity/Maternity or Adoption Not found in the Western Hemisphere. L14: Establishment of Foreign Citizenship This ground for loss can be considered as the mirror image of A03a and A03b. After all, mode L14 is concerned with ‘persons who acquired citizenship of his/ her country as a foundling or as a presumptively stateless person and whose foreign citizenship is later established’.31 It was previously seen that the following countries implemented a rule for A03a: A&B, Barbados, Belize, Canada, Costa Rica, Guyana, Haiti, Honduras, Mexico, Nicaragua, Paraguay, Peru, St Kitts, St Lucia, Surinam, and the United States. It was also seen that A&B, Barbados, Colombia, Guyana, St Kitts, and Surinam offered protection to children born in the territory who would otherwise be stateless. The countries that explicitly appear to take away a person’s citizenship if citizenship of another country is established are Barbados, Belize, Canada, Haiti, Nicaragua and the United States. I deliberately say ‘appear’ because it is sometimes unclear whether the decisive element for the loss of citizenship is 30 31

G.-R. de Groot and M.P. Vink, “Loss of Citizenship: Trends and Regulations in Europe,” 19. See the ‘target person’ category in the typology table in Chapter 4.

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the acquisition of a foreign citizenship or the establishment of the foreign parents’ identity. Haitian law, for example, merely states that those who acquired Haitian citizenship by virtue of A03a and whose descent from a foreign citizen who is not of the African race is discovered during minority, will lose Haitian citizenship. It therefore remains unclear whether loss is conditional on the child acquiring the foreign parents’ citizenship or whether the child can in fact be rendered stateless by the loss of Haitian citizenship. L15: Loss for Other Reasons This ground for loss is a miscellaneous category and is only used in the case of Chile.

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Index Alaska  354 Algeria  38 American Revolution  135–6, 353 Anglican church  11 Anguilla  37 Antigua and Barbuda  37, 55, 74–82, 93, 103, 186, 221, 346n Argentina  53, 55, 69, 83–92, 118n, 151, 160, 231, 297, 367–8, 375 Aruba  42–43 See also Status aparte Associated Statehood  37, 41 See also Estado Libre Asociado Associated States  37 Audiencia  16n, 178, 195, 230 Bahamas  11, 37, 75, 93–103, 320n Barbados  15, 37, 55, 71n, 75, 103–109, 222, 320n Belgium  17 Belize  55, 93, 110–117, 171n, 188, 214, 231, 255, 282, 328 Bermuda  37 Bolívar, Simón  16n, 118, 160, 207n, 374 Bolivia  16n, 52, 55, 183, 118–123, 304 Bonaire  42–43 Brazil  16–7, 26, 55, 118, 124–134, 215, 239, 297n, 367 British Honduras  110, 328 British Overseas Territories  3, 36–39 British Overseas Territories Act (2002)  37 British Virgin Islands  37 British West Indies  36 Burgerschap  25 Canada  8, 54–5, 134–149, 249 Captaincy-General  160, 207, 374 Carib Indians  186, 320, 328 Catholicism/Catholic church  12, 17, 35, 135, 197 Cayman Islands  37, 263 Chile  16, 26, 54–5, 118, 150–9, 231 Central American Republic  170, 214–5, 255, 281 See also United Provinces of Central America

Central and Eastern Europe  9 Charter of the Kingdom (Statuut voor het Koninkrijk)  43 Charter of Rights and Freedoms (Canada)  138 Cidadania  25, 124 Cittadinanza  25, 84n Ciudadanía  25, 84, 124, 231 Cold War  36 Colombia  26, 55, 160–169, 171n, 195, 207, 289–290, 297, 368, 374, 376 Columbus, Christopher  74, 93, 178, 195, 221, 345, 374 Columbus, Diego  195 Conflict of Laws  20 See also Private International Law Cortés, Hernán  230 Costa Rica  47, 52, 55, 170–7, 179, 214, 230, 368 Cuba  14–5, 30, 35–6, 40, 52, 178–185 Curaçao  42–43 Decolonisation  35–38, 42–3 Denmark  40 Départementalisation  38–9 Départements d’outre-mer (dom)  38–9 Dominica  37, 74, 93n, 186–194, 221, 222n, 263, 313n, 346n Dominican Republic  36, 48–50, 55, 178–9, 195–206 Economic citizenship  113, 115, 187, 312 Ecuador  18, 19, 20, 55, 160, 207–213, 374 El Salvador  55, 170, 171n, 214–220, 231, 255, 281, 289n Estado Libre Asociado (Puerto Rico)  41 eudo Citizenship (definition)  3 European Convention on Human Rights (echr)  46–7 European Convention on Nationality (ecn)  6–8, 46–7, 76 European Court of Human Rights (ECtHR)  46 European Union (eu)  4, 39, 232 eu Citizenship  4, 39, 232

413

Index Federal Republic of Central America  214, 218, 231, 235, 281

Montserrat  37 Moors  11

Germany  25 Great Colombia (Gran Colombia)  16n, 160, 207, 289, 374 Grenada  37, 55, 74, 221–9, 312, 320n, 328 Guyana  37, 75n, 215, 239–246, 336 Haitian Revolution  35 France  5, 21, 26–7, 35–6, 38–9, 135, 186, 196, 247, 320, 328 French Guyane  215, 239n Glossary (eudo)  26, 28–30, 58 Guadeloupe  15, 38 Guam  354 Guatemala  16, 18, 26, 55, 110, 118, 170, 171n, 214, 230–8, 271, 273, 297n

Nacionalidade  25, 124 Nationaliteit  25 Nationalität  25 Nazionalità  25, 84 New Granada  16, 160, 207, 289, 374 Newfoundland  15 New Spain  12, 16, 178, 230, 271 Nicaragua  26, 55, 151, 170–1, 214, 255, 281–8, 297n, 385 North America  12, 18, 135, 142, 353

Haiti  10, 11, 14, 26, 35–6, 48, 55, 195–198, 215–6, 247–254 Hawaii  354 Heretics  11 Hispaniola  195, 247 Honduras  55, 110, 170–1, 214–5, 255–262, 281, 328, 386 Imperialism  18, 36 Inca  150, 304 Investor citizenship  187, 221, 312 Ireland  75, 105–6, 225–6, 243, 263, 266–7, 312, 331–2, 349 Italy  9, 25, 69, 84–6, 93n, 376, 380, Ius sanguinis (definition)  ix Ius soli (definition)  ix Jamaica  14, 15, 37, 55, 71, 75n, 93, 222, 263–270, 320n, Jamestown  353 Jefferson, Thomas  135, 353n Jews  11 Lebanon  140 Leeward Island  42 Maastricht Treaty (1992)  4 Manhattan  336 Mariana Islands  354 Martinique  15, 38 Mesoamerica  18 Mexico  12n, 18, 55, 230, 271–281

Panama  16n, 41n, 55, 160, 171n, 207, 214, 216, 231, 255, 281, 289–296, 374 Paraguay  55, 83, 118, 297–303, 367 Peace of Ryswick  247 Peru  12n, 16, 17n, 18, 50–1, 55, 83, 118, 150, 195n, 282, 304–311 Philippines  39, 297n Poland  17 Portugal  26–7, 124, 367, 380 Potosí silver mines  83, 304 Private International Law  20 See also Conflict of Laws Puerto Rico  5, 15, 30, 36, 39, 40–1, 179, 354 Quebec  135 Réunion  38 Revolutionary War (usa)  353 Río de la Plata  16, 83, 160, 297n Rodríguez de Francia, José Gaspar (‘Dr Francia’)  297 Saba  42–3 San Martín, José de  207 Santo Domingo  15, 16, 178, 195 Seven Years’ War  135 Slavery  178n, 196, 247 Staatsangehörigkeit  25 St Kitts and Nevis  15, 37, 74, 187, 221, 312–9 St Lucia  221, 320–8 St Vincent and the Grenadines  222, 328–335 Status Aparte  43 St Eustasius  42–3 St Maarten  42–3

414 St Martin  38 Surinam  42, 55, 71, 215, 239, 336–344, 367 Tertium comparationis  7 Treaty of Breda  336 Treaty of Madrid  263 Treaty of Paris  135, 320 Treaty of Utrecht  312 Treaty of Versailles  221, 328 Trinidad and Tobago  16, 35, 37, 55, 71, 239, 240, 312, 345–352 Trujillo, Rafael Leonidas  196 Turks and Caicos Islands  37–8, 263 South America  13, 271n, 304, 367 United Provinces of Central America  170, 214, 215 See also Central American Republic

Index United States of America  5, 8, 9n, 17, 21, 24, 30, 35–7, 39–42, 54, 103n, 135, 139, 142, 178, 215, 247, 353–366, 271 Upper Peru  83, 118, 304 Uruguay  16n, 17, 18, 26, 55, 70, 83, 297n, 367–373 U.S. Virgin Islands  39–42 Venezuela  16, 17, 26, 55, 160, 207, 215, 231, 239n, 297n, 374–383 Viceroyalty  16, 83, 150, 160, 178, 207, 230, 271, 289, 297, 304, 374 Welsh  16, 239 West Indian Federation  37 Westminster  135 Windward Islands  42, 221 World War  42–42, 137