Conventional Regulation of Relations related to multiple and dual Citizenship

The contractual regulation of dual and multiple citizenship is perhaps the only effective means of resolving the issues that arise in connection with the existence of such a status. Despite attempts to resolve them by domestic mechanisms, international law still takes priority when it comes to aspects of citizenship that go beyond national regulation, such as statelessness, bi- and/or polypatrism. The importance of international law on these issues is reflected in a large number of international agreements concluded to resolve the problems of dual and multiple citizenship.

It is well known that bi- and polypatrism serve as a source of a number of difficulties in various situations present in international communication, which often flow into disputes between States. This is connected with diplomatic protection, and with the provision by the sovereigns of their important internal public-legal functions: the establishment of the foundations of military service or service in state structures, taxation, etc. In order to better take into account mutual interests and improve regulation in these and other areas, and sometimes with an eye to the complete elimination of dual and multiple citizenship as a potential cause of serious legal problems, States conclude bilateral and multilateral international treaties.

Historically, the classification of such contracts has undergone changes caused by the revision of the attitude towards dual and multiple citizenship. Thus, S.V. Chernichenko in his 1968 work notes the multiplicity of international treaties to varying degrees devoted to the elimination of dual citizenship, and among them distinguishes "treaties aimed at preventing dual citizenship and treaties whose purpose is to eliminate existing cases of dual citizenship" ^{[1, p. 116]}. Consequently, part of such agreements serves as a preventive measure to prevent the subsequent occurrence of bipatrism, and the other part is a mechanism to combat this phenomenon after the fact. In addition, within the framework of this classification, there are contracts aimed at eliminating only a few sources of dual citizenship, and contracts whose purpose is only one such source. In a relatively recent work in 2014, S.V. Chernichenko identifies, in addition to treaties aimed at eliminating dual citizenship as such, also treaties that act as a mechanism for resolving the consequences that arise in connection with dual citizenship – these are the Hague Convention of 1930, the European Convention on Multiple Citizenship of 1963, the European Convention on Citizenship of 1997 G., and numerous bilateral treaties on dual citizenship in general or its individual aspects, such as military service by a bipatride ^{[2, pp. 418-419]}.

Following the development of the classification of treaties on bi- and polypatrism, presented in the works of S.V. Chernichenko, we believe, nevertheless, it is advisable, taking into account all trends in the regulation of dual and multiple citizenship at the present stage, to clarify the key aspects of such a classification. To date, the following types of treaties on bi- and polypatrism are relevant: treaties recognizing dual and multiple citizenship as negative phenomena that require complete elimination or reduction as far as possible; treaties recognizing the inevitability of dual and multiple citizenship and therefore aimed at resolving their negative consequences, and in some cases – at encouraging and stimulation of the growth of the number of bi- and polypatrides. It should be noted that, historically speaking the first, treaties on the elimination of dual and multiple citizenship, however, are losing their relevance today due to the revision of the attitude of States to bi- and polypatrism and awareness of their inevitability, which is expressed in an increase in the number of treaties assigned to the second group. This indicates that States, realizing the futility of attempts to eliminate the phenomena of dual and multiple citizenship due to the objective reasons underlying them, have directed efforts to develop mechanisms regulating the consequences of these phenomena.

As already noted, historically, the first treaties were aimed at eliminating bi- and polypatrism. This was due to the previously existing doctrine of eternal loyalty or allegiance, which assumed a personal relationship between the individual and the sovereign – eternal and immutable ^{[3, pp. 1419-1424]}. Despite the fact that over time, this approach has lost its relevance due to the expanded migration, integration, and economic processes, it still affected the initial reaction of the world community to mass cases of bi- and polypatrism.

Let's consider a number of bilateral agreements related to the first group. Named after an American diplomat, the "Bancroft Treaties" were a series of treaties concluded by the United States at the end of the XIX century with a number of states and aimed at reducing cases of dual citizenship and conflicts arising on this basis. The treaties contained mechanisms by which the citizenship of the State of origin was lost in the case of naturalization in another country. Thus, one of the reasons for multiple citizenship was eliminated – voluntary naturalization. In addition, the treaties were designed to solve the problem of circular migration, which was relevant for the United States at that time ^{[4, p. 91]}. For this purpose, the treaties provided for the possibility of recognizing an immigrant as an American citizen only after five years of permanent residence in the United States from the moment of naturalization, and in the case of returning to permanent residence in the state of origin, the citizenship of this state was restored, and the American, respectively, was lost ^[5]. In addition, the Bancroft treaties contained provisions on the military service of bipatrides, mainly aimed at eliminating bipatrism or preventing the possibility of its occurrence – the so-called American approach ^{[6, p. 15]}.

Bilateral agreements regulating the order of military service by bi- and polypatrides are very numerous and contain, as a rule, a unified approach to solving this problem. First of all, it provides for the need to perform military service only in one of the States of citizenship, and often the choice is made in favor of the State where the individual permanently resides, but most conventions provide for the possibility for individuals themselves to choose one of the States of citizenship in which such a person would like to undergo military service by submitting an appropriate application. Similar agreements were concluded between Denmark and France ^[7], Spain and Italy ^[8], the Netherlands and Italy ^[9] and other countries.

The first group also includes agreements concluded by the USSR in the second half of the XX century with such states as Albania ^[10], Bulgaria ^[11], Germany ^[12], the DPRK ^[13], Mongolia ^[14], etc. The preambles of all these documents indicated a desire to eliminate cases of dual citizenship on the basis of a voluntary choice of citizenship by interested persons, as well as to prevent its occurrence in the future.

Speaking about multilateral treaties on dual and multiple citizenship, we should start with the Hague Convention, which regulates some issues related to the conflict of laws on citizenship in 1930. The key provisions of the Harvard draft, which served as the basis of the Convention and contained more "radical" ^{[15, p. 119]} mechanisms for preventing polypatrism, in particular, mandatory opt-in, automatic expatriation in the case of acquiring a nationality other than the nationality of origin has not been widely recognized and, accordingly, reflected in the final version of the adopted document. In essence, the Convention is aimed at regulating issues related to the conflict of laws on citizenship, its very name shows that the goal of reducing cases of multiple citizenship was not set. The Hague Convention presupposes the priority of State discretion in matters of citizenship, including multiple and dual. The Convention, as already mentioned, contains key provisions that have influenced the resolution of conflicts arising as a result of bi- and polypatrism. We are talking about the rule of non-responsibility and the principle of effective citizenship, which have found wide application in judicial practice in cases of diplomatic protection of persons with dual and multiple citizenship.

Another international agreement aimed directly at reducing the number of polypatrides is the Convention on the Reduction of Cases of Multiple Citizenship and on Military Duty in Cases of Multiple Citizenship of 1963, adopted under the auspices of the Council of Europe, but open for signature not only by the member States of the organization ^[16]. The key instrument for curbing the growth of the number of multi-citizenship within the framework of the Convention is the provision on the need to renounce the original citizenship in the case of naturalization in another State. Be that as it may, there are very few parties to the Convention, which is explained by the changed policy of States that have changed their course to soften the policy on polypatrism, which is associated with modern trends in the development of international communication. The attempt of the 1963 Convention to somehow influence the growth rate of multiple citizenship or eliminate this phenomenon, which sounded even more ambitious, can be considered futile not only because of the small number of its participants, although this is already very significant, but also because of the amendments made by the Second Protocol of 1993 to the Convention, which fixed the possibility of retaining citizenship origin in the case of naturalization under certain conditions ^[17].

Back in the 90s of the XX century. within the framework of the Council of Europe, the preparation of a new convention began, adopted in 1997 and received a rather simple, but no less capacious name "Convention on Citizenship". Unlike its predecessor (the 1963 Convention), which perceived dual and multiple citizenship as an undesirable phenomenon, the European Convention on Citizenship reflected the trend of acceptance of this phenomenon that had emerged by that time and emphasized only the need to find appropriate ways to overcome the consequences of multiple citizenship, in particular with regard to the rights and obligations of persons with multiple citizenship P. Spiro calls the 1997 Convention a turning point in the international legal regulation of dual and multiple citizenship ^{[18, pp. 733-736]}. Indeed, the Convention, in addition to changing the course towards the predominance of the interests of individuals, and not just States, also served as a starting point for the recognition of dual citizenship through bilateral treaties. This became possible due to a number of changes that have occurred in Europe since 1963: labor migration between European states, the need for integration of persons permanently residing in the country, interstate marriages, freedom of movement between member States of the European Union. Despite the large volume of the Convention, which affects such a wide range of issues related to citizenship as acquisition, preservation, loss, restoration, procedural rights, multiple citizenship, citizenship in the context of State succession, military duty and cooperation between States parties, the Convention, in our opinion, differs from its predecessors in a large permissive nature. This is manifested in those provisions that allow for the preservation of multiple citizenship acquired automatically in the conflict of jus soli and jus sanguini or upon marriage, and also recognizes the right of States to allow the emergence of multiple citizenship and naturalization. Considering all this, however, the Convention recognizes the possibility for States to apply the extradition mechanism, while limiting this right only to the condition that the refusal or loss of citizenship of this State is impossible or not justified ^[19].

A number of bilateral treaties concluded since the middle of the XX century can be attributed to the treaties also aimed at preserving dual citizenship and resolving its consequences. It should be noted that despite the ruling position at that time on the non-acceptance of dual and multiple citizenship, a number of countries, usually former colonial powers, concluded dual citizenship treaties in order to maintain influence in the former colonies. Thus, in Spain, at the constitutional level, the right of the state to conclude dual citizenship agreements "with Ibero-American countries or with countries that had or have special ties with Spain" is enshrined ^[20]. Actively using this right, Spain has concluded more than a dozen treaties regulating issues of bipatrism with such countries as, for example, Bolivia ^[21], Guatemala ^[22], Paraguay ^[23], Peru ^[24], etc. In accordance with these agreements, only one of the nationalities of a person who has the citizenship of both contracting parties is active, while the second citizenship is suspended, but can be activated by the application of the interested person ^{[25, p. 202]}.

In the Russian Federation, unlike the Soviet tradition of prohibiting dual and multiple citizenship, naturalization in another country is allowed, moreover, the expansion of integration and migration processes that occurred after the collapse of the USSR, the development of economic ties between states actualized the theme of bi- and polypatrism in the country, the purpose of which was to promote the preservation of cultural ties of divided kindred peoples. ^{[26, p. 261]}. Relevant agreements were concluded with Tajikistan ^[27], Turkmenistan ^[28] (terminated by Turkmenistan unilaterally after the adoption of the constitutional amendment on non-recognition of dual citizenship in 2003), South Ossetia ^[29] (will enter into force from the date of the exchange of instruments of ratification), work is underway to adopt an agreement on dual citizenship with the Republic of Abkhazia. Moreover, since 2019, citizens of the Donetsk People's Republic and the Luhansk People's Republic have been admitted to citizenship of the Russian Federation in a simplified manner. In accordance with the Decree of the President of the Russian Federation dated April 24, 2019, "citizens of Ukraine, the Donetsk People's Republic or the Luhansk People's Republic and stateless persons permanently residing in the territory of the Donetsk People's Republic, the Luhansk People's Republic or Ukraine, including those who previously had the citizenship of the Russian Federation and issued a withdrawal from the citizenship of the Russian Federation in accordance with the established procedure, have the right to apply for citizenship of the Russian Federation in a simplified manner in accordance with part eight of Article 14 of Federal Law No. 62-FZ of May 31, 2002 "On Citizenship of the Russian Federation"" ^[30]. The simplified procedure allows citizens of Ukraine, the LPR and the DPR to apply for citizenship of the Russian Federation without complying with the requirements for residence, availability of a legitimate source of livelihood, knowledge of the Russian language, which are provided as mandatory for naturalization in the Russian Federation in the general procedure ^[31].

Comparing the practice of concluding multilateral and bilateral agreements, it is concluded that the latter are more effective. However, we consider it impossible to resolve the multidimensional problems that bi- and polypatrism generates by bilateral agreements alone. Bilateral agreements usually determine the procedure for resolving issues related to diplomatic protection, taxation, military service, etc. In the absence of such agreements, disagreements often arise, which are resolved in court. There is a need to search for new international mechanisms for the legal regulation of bi- and polypatrism. The conclusion of only bilateral agreements will not solve the problems that may arise and arise in the absence of proper legal regulation, in this case international. The conclusion of a universal international treaty regulating dual and multiple citizenship, as practice shows, will not solve the problems arising as a result of bi- and polypatrism, which is explained by significant economic, political, ethno-cultural, historical and legal differences of states, in particular in matters of regulating citizenship. On the other hand, regional integration can contribute to finding a way out of the current situation by developing and adopting an appropriate agreement within a regional association or between countries with similar legal systems, but again without solving the problem at the global level. It is concluded that it is necessary to develop new approaches to ensure greater effectiveness of the mechanism of international legal regulation of bi- and polypatrism.