European Convention on Nationality
Cautious but increasingly liberal stance on multiple nationality
By William Wetherall
First posted 10 September 2014
Last updated 2 October 2014
Council of Europe
The Council of Europe, an international organisation in Strasbourg, France, has 47 member countries as of 2014. The council was established to promote democracy and protect the human rights and the rule of law in Europe.
The council's Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality opened for signature in 1963. The convention was amended by 2 protocols, one in 1977, the other in 1993, and some resolutions concerning nationality have also been passed.
Unlike the 1963 convention, the 1997 European Convention on Nationality is comprehensive. It embraces the principles of the 1963 convention, but does not replace it. The two conventions are compatible and co-exist.
The Council of Europe's Explanatory Report on the 1997 European Convention on Nationality is an extremely detailed and interesting review of the thinking behind every chapter, article, paragraph, and subparagraph of the convention. See Council of Europe: Treaty Office for the full report.
Here I will show only the first 3 parts of the 4-part introduction. The 4th part is on "The relevance of the Convention for the Protection of Human Rights and Fundamental Freedoms".
The green subtitles in the following representation are mine,
[ European Convention on Nationality
a. Historical background
Multiple nationality and military obligations
1. The Council of Europe (1) has dealt with issues relating to nationality(2) for over thirty years. In 1963 the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality (ETS No. 43, hereinafter called "the 1963 Convention") was opened for signature. Since then, however, there has been a growing recognition that numerous problems concerning nationality, in particular multiple nationality, have not been sufficiently considered by the 1963 Convention. Some of these problems were addressed in protocols opened for signature in 1977(3). In 1993, the Second Protocol (ETS No. 149) amending the 1963 Convention was opened for signature.
Nationality of spouses of different nationalities
Nationality of children born in wedlock
2. In 1977 the Committee of Ministers adopted two resolutions, one on the nationality of spouses of different nationalities and the other on the nationality of children born in wedlock (respectively Resolutions (77) 12 and 13). The former resolution recommended that governments of member States take steps so that foreign spouses of their nationals may acquire their nationality on more favourable conditions than those generally required of other aliens and to eliminate distinctions between foreign husbands and foreign wives as regards the acquisition of nationality. The latter resolution recommended that governments grant or facilitate the acquisition of their nationality to children born in wedlock if one of the parents was a national.
Multiple nationality in mixed marriages
Multiple nationality of children born from mixed marriages
3. The Parliamentary Assembly has also adopted a number of recommendations concerning nationality, inviting member States to facilitate in particular the naturalisation of refugees in their country. In 1988, it adopted Recommendation 1081 (1988) on problems of nationality in mixed marriages. Therein, the Assembly noted that it was desirable for each of the spouses of a mixed marriage to have the right to acquire the nationality of the other without losing the nationality of origin; furthermore, children born from mixed marriages should also be entitled to acquire and keep the nationality of both of their parents.
4. In December 1992, the Committee of Experts on Multiple Nationality (CJ-PL), later renamed the Committee of Experts on Nationality (CJ-NA), proposed the preparation of a feasibility study concerning a new, comprehensive convention which would contain modern solutions to issues relating to nationality suitable for all European States. On the basis of this feasibility study, the CJ-NA started preparing a draft text in November 1993(4). The working party of the CJ-NA met nine times between March 1994 and November 1996 and the CJ-NA met five times between November 1993 and July 1996 in order to prepare the draft convention. From February 1995 the draft text of the European convention on nationality, as revised by the CJ-NA, was published in order to inform all interested persons and to give them the opportunity to comment.
5. As a result of this work and the consultations of the Parliamentary Assembly, the Steering Committee for Human Rights (CDDH), the European Committee on Migration (CDMG), the Ad hoc Committee of Legal Advisers on Public International Law (CAHDI) and the Committee of Experts on Family Law (CJ-FA), the text of the draft convention was finalised by the European Committee on Legal Co-operation (CDCJ) on 29 November 1996 and adopted by the Committee of Ministers on 14 May 1997. The Convention will be opened for signature on 6 November 1997.
b. The 1963 Convention and developments in Europe thereafter
Multiple nationality undesirable -- especially when other nationality actively acquired
6. Chapter I of the 1963 Convention is based on the idea, broadly accepted by many western European States at that time, that multiple nationality was undesirable and should be avoided as far as possible. Article 1 of the 1963 Convention provides in particular that nationals who acquire of their own free will another nationality shall lose their former nationality and shall, subject to a reservation, not be authorised to retain it.
Rules ensuring that multiple nationals will not serve in more than one state's military
7. Nevertheless, the 1963 Convention recognises that multiple nationality does occur in particular where a second nationality of a State Party has been acquired automatically or where a State, which is not a Party to its Chapter I, allows multiple nationality in other cases. Therefore Chapter II, which may be accepted by a State Party even if it has not accepted Chapter I, contains rules on military obligations in cases of multiple nationality in order to ensure that persons with multiple nationality are not required to carry out their military obligations in more than one State Party.
Multiple nationality of second-generation migrants [sic]
8. Owing to the number of developments that have taken place in Europe since 1963 and which are referred to hereinafter, the Council of Europe decided to reconsider the strict application of the principle of avoiding multiple nationality: labour migrations between European States leading to substantial immigrant populations, the need for the integration of permanent residents, the growing number of marriages between spouses of different nationalities and freedom of movement between European Union member States. In addition, the principle of equality of the sexes has meant that spouses of different nationalities should be allowed to acquire the nationality of their spouse under the same conditions and that both spouses should have the possibility of transmitting their nationality to their children. The Second Protocol amending the 1963 Convention thus allows multiple nationality in the following three additional cases: second-generation migrants and spouses of mixed marriages and their children.
Facilitating multiple nationality for persons who actively acquired other nationality
9. The question of allowing persons, who voluntarily acquire another nationality, to retain their previous nationality will depend upon the individual situation in States. In some States, especially when a large proportion of persons wish to acquire or have acquired their nationality, it may be considered that the retention of another nationality could hinder the full integration of such persons. However other States may consider it preferable to facilitate the acquisition of their nationality by allowing persons to retain their nationality of origin and thus further their integration in the receiving State (e.g. to enable such persons to retain the nationality of other members of the family or to facilitate their return to their country of origin if they so wish).
States should remain free to determine their own rules concerning multiple nationality
10. Consequently, States should remain free to take into account their own particular circumstances in determining the extent to which multiple nationality is allowed by them (see the Preamble to the European Convention on Nationality).
c. The need for a comprehensive convention on nationality
progressive development of international law on nationality
11. Ever since The Hague Convention on Certain Questions relating to the Conflict of Nationality Laws was concluded in 1930, the number of international instruments containing provisions on nationality has grown considerably(5). There is therefore a need to consolidate in a single text the new ideas which have emerged as a result of developments in internal law and in international law. Article 14 of the present Convention thus allows for multiple nationality in the case of married persons of different nationalities and their children. In addition, some provisions included in this Convention aim to contribute to the progressive development of international law on nationality, for example Chapter VI on State succession and nationality.
1997 convention not incompatible and co-exists with 1963 convention
12. While the 1963 Convention dealt only with multiple nationality, this Convention, with the exception of questions relating to conflict of laws, deals with all major aspects related to nationality: principles, acquisition, retention, loss, recovery, procedural rights, multiple nationality, nationality in the context of State succession, military obligations and co-operation between the States Parties. The title, the European Convention on Nationality, therefore reflects this fact. This Convention neither modifies nor is incompatible with the 1963 Convention. Consequently, the two conventions can co-exist. In view of the importance of this question, Article 26 of the new Convention explicitly confirms this compatibility (see also the commentary to Article 26 below).
"habitual residence" and standardization of "domicile" and "residence"
13. The most important area which it has not been possible to include in the present Convention relates to the conflict of laws arising from multiple nationality. However, a growing number of States are making use of the notion of "habitual residence" (see also the Committee of Ministers Resolution (72) 1 on the standardisation of the legal concepts of "Domicile" and of "Residence") rather than the notion of nationality as a connecting factor in private international law. This eliminates a number of problems which may arise concerning persons with multiple nationality. In this context, it should be emphasised that the notion of "habitual residence", as used in the Convention, applies generally to persons who regularly and effectively live in a particular place.
14. The problems which emerged as a result of the democratic changes which have taken place in central and eastern Europe since 1989 further underlined the need for a new convention on nationality. Virtually all of these new democracies had to draft new nationality and aliens laws. The existence of a comprehensive Council of Europe convention constitutes an important standard in this field. This is particularly the case in circumstances where a State is dissolved. Important issues such as the avoidance of statelessness and the rights of persons habitually resident on the territories concerned are therefore addressed by this Convention.
15. This Convention, in particular Articles 4 to 6, 10 to 13 and 18 to 20 relating to the acquisition of nationality and to non-nationals, will be of relevance for the implementation of the 1995 Council of Europe Framework Convention for the Protection of National Minorities. The aim of the framework convention is to specify the legal principles which States undertake to respect in order to ensure the protection of national minorities. For example, Article 4, paragraph 1, of the framework convention prohibits discrimination on the ground of belonging to a national minority, a rule which is reinforced by Article 5 and Article 20, paragraph 1, of this Convention. Furthermore, the principles of certain United Nations agreements, such as the 1961 Convention on the Reduction of Statelessness and Article 7 of the 1989 Convention on the Rights of the Child will be reinforced by this Convention, particularly by Articles 4 to 7 and 18.
The first 2 of many end notes at the end of the Explanatory Report read as follows. Here, too, the green subtitles are mine.
40 member states in 1997
(1) Member States of the Council of Europe as of September 1997: Albania, Andorra, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, "the former Yugoslav Republic of Macedonia", Turkey, Ukraine and United Kingdom.
Many countries use "citizenship" with the same meaning as "nationality"
But this does not mean that "nationality" means "citizenship"
(2) Most countries of central and eastern Europe use the term "citizenship" which has the same meaning as the term "nationality" used in the European Convention on Nationality and by most western European States.
Definition of "nationality"
European Convention on Nationality
The Council of Europe's European Convention on Nationality was opened for signatures by member and non-member states on 6 November 1997, and came into force on 1 March 2000 after being ratified by 3 states -- Austria, Moldova, and Slovakia. The treaty does not enjoy a particularly high rate of participation. As of 1 October 2014, it has been signed by 29 states, but ratified by and enforced in only 20, all but one of which (Iceland) has made reservations and or declarations.
In the following slightly reformatted representation, the lines separating chapters, [bracketed remarks], highlighting, and boxed comments are mine.
[ ETS (European Treaty Series) No. 166 ]
European Convention on Nationality
The member States of the Council of Europe and the other States signatory to this Convention,
Considering that the aim of the Council of Europe is to achieve greater unity between its members;
Bearing in mind the numerous international instruments relating to nationality, multiple nationality and statelessness;
Recognising that, in matters concerning nationality, account should be taken both of the legitimate interests of States and those of individuals;
Desiring to promote the progressive development of legal principles concerning nationality, as well as their adoption in internal law and desiring to avoid, as far as possible, cases of statelessness;
Desiring to avoid discrimination in matters relating to nationality;
Aware of the right to respect for family life as contained in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Noting the varied approach of States to the question of multiple nationality and recognising that each State is free to decide which consequences it attaches in its internal law to the fact that a national acquires or possesses another nationality;
Agreeing on the desirability of finding appropriate solutions to consequences of multiple nationality and in particular as regards the rights and duties of multiple nationals;
Considering it desirable that persons possessing the nationality of two or more States Parties should be required to fulfil their military obligations in relation to only one of those Parties;
Considering the need to promote international co-operation between the national authorities responsible for nationality matters,
Have agreed as follows:
Chapter I -- General matters
Article 1 -- Object of the Convention
This Convention establishes principles and rules relating to the nationality of natural persons and rules regulating military obligations in cases of multiple nationality, to which the internal law of States Parties shall conform.
Article 2 -- Definitions
For the purpose of this Convention:
Chapter II -- General principles relating to nationality
Article 3 -- Competence of the State
Article 4 -- Principles
The rules on nationality of each State Party shall be based on the following principles:
Article 5 -- Non-discrimination
Chapter III -- Rules relating to nationality
Article 6 -- Acquisition of nationality
Article 7 -- Loss of nationality ex lege or at the initiative of a State Party
Article 8 -- Loss of nationality at the initiative of the individual
Article 9 -- Recovery of nationality
Each State Party shall facilitate, in the cases and under the conditions provided for by its internal law, the recovery of its nationality by former nationals who are lawfully and habitually resident on its territory.
Chapter IV -- Procedures relating to nationality
Article 10 -- Processing of applications
Each State Party shall ensure that applications relating to the acquisition, retention, loss, recovery or certification of its nationality be processed within a reasonable time.
Article 11 -- Decisions
Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing.
Article 12 -- Right to a review
Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law.
Article 13 -- Fees
Chapter V -- Multiple nationality
Article 14 -- Cases of multiple nationality
Article 15 -- Other possible cases of multiple nationality
The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether:
Article 16 -- Conservation of previous nationality
A State Party shall not make the renunciation or loss of another nationality a condition for the acquisition or retention of its nationality where such renunciation or loss is not possible or cannot reasonably be required.
Article 17 -- Rights and duties related to multiple nationality
Chapter VI -- State succession and nationality
Article 18 -- Principles
Article 19 -- Settlement by international agreement
In cases of State succession, States Parties concerned shall endeavour to regulate matters relating to nationality by agreement amongst themselves and, where applicable, in their relationship with other States concerned. Such agreements shall respect the principles and rules contained or referred to in this chapter.
Article 20 -- Principles concerning non-nationals
Chapter VII -- Military obligations in cases of multiple nationality
Article 21 -- Fulfilment of military obligations
Article 22 -- Exemption from military obligations or alternative civil service
Except where a special agreement which has been, or may be, concluded provides otherwise, the following provisions are also applicable to persons possessing the nationality of two or more States Parties:
Chapter VIII -- Co-operation between the States Parties
Article 23 -- Co-operation between the States Parties
Article 24 -- Exchange of information
Each State Party may at any time declare that it shall inform any other State Party, having made the same declaration, of the voluntary acquisition of its nationality by nationals of the other State Party, subject to applicable laws concerning data protection. Such a declaration may indicate the conditions under which the State Party will give such information. The declaration may be withdrawn at any time.
Chapter IX -- Application of the Convention
Article 25 -- Declarations concerning the application of the Convention
Article 26 -- Effects of this Convention
Chapter X -- Final clauses
Article 27 -- Signature and entry into force
Article 28 -- Accession
Article 29 -- Reservations
Article 30 -- Territorial application
Article 31 -- Denunciation
Article 32 -- Notifications by the Secretary General
The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, any Signatory, any Party and any other State which has acceded to this Convention of:
In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
Done at Strasbourg, this sixth day of November 1997, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the non-member States which have participated in the elaboration of this Convention and to any State invited to accede to this Convention.