Dual Nationality or Bipatrism as a Result of Bilateral Cooperation Between States

Adzhba Diana Postgraduate of International Law Department of Kutafin Moscow State Law University 123001, Russia, Moscow, Moscow, Sadovaya-Kudrinskaya str., 9 diana.adzhba07@gmail.com Other publications by this author

International cooperation on citizenship issues, which have been the subject of domestic regulation from time immemorial, is being actualized in connection with the emergence of legal situations, which national law alone cannot cope with resolving due to its unilateral action. We are talking about multiple, dual citizenship, statelessness, which arise more and more often today in connection with the development of globalization, integration, migration and other processes. International cooperation of States on citizenship issues is implemented, including in the form of the conclusion of multilateral and bilateral treaties.

Initially, multilateral treaties were concluded with the aim of eliminating and/or reducing cases of multiple and dual citizenship. Domestic policy, which acted as a key guideline in matters of citizenship, when concluding such agreements at that time was characterized by a negative attitude to the phenomena of bi- and polypatrism caused by the prevailing doctrine of eternal fidelity, which assumed eternal and immutable ties of the individual and the state ^{[1, pp. 1419-1424]}.

The classification of contracts on dual and/or multiple citizenship has undergone changes due to the changing approach to the legal regulation of these phenomena: a negative attitude towards them or, conversely, their acceptance. S.V. Chernichenko in his 1968 work, among the contracts in one way or another devoted to dual and multiple citizenship, identifies "contracts aimed at prevention of dual citizenship, and treaties whose purpose is to eliminate existing cases of dual citizenship" ^{[2, p. 116]}. That is, in this classification, contracts are traced as a preventive measure to prevent the subsequent occurrence of bipatrism, as well as contracts containing mechanisms 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 later work in 2014, S.V. Chernichenko, in addition to contracts aimed at eliminating bi- and polypatrism, also identifies contracts aimed at resolving those negative consequences that arise in connection with multiple and dual citizenship. These include the Hague Convention of 1930 ^[3], the European Convention on Multiple Citizenship of 1963 ^[4], the European Convention on Citizenship of 1997 ^[5], and numerous bilateral treaties on dual citizenship in general or its individual aspects.

We consider it expedient to present the classification of dual and multiple citizenship treaties in the following form: "treaties recognizing dual and multiple citizenship as negative phenomena requiring 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 stimulating the growth of the number of bi- and polypatrides" ^[6]. A special place among these types of agreements is occupied by bilateral agreements on dual citizenship, the conclusion of which serves as a prerequisite for the emergence of such a phenomenon as dual citizenship, bipatrism.

The practice of concluding bilateral agreements shows positive dynamics in terms of accepting the phenomenon of bipatrism. In this regard, it is important to dispel the terminological confusion associated with the use of the terms "multiple citizenship" and "dual citizenship" as identical in content, which we consider to be untrue. In our opinion, the causes of bi- and polypatrism are different circumstances, which determines their different content. Thus, multiple citizenship arises solely as a result of naturalization. Dual citizenship may arise in the event of a conflict of laws on citizenship jus soli and jus sanguini, when at birth an individual becomes the holder of citizenship of two States simultaneously due to the application of different laws of citizenship acquisition by the States of citizenship of his parents. In addition, bipatrism arises within the framework of bilateral agreements concluded by States on dual citizenship.

Bilateral agreements on dual citizenship are more effective than multilateral ones to the extent that they solve most of the problems arising from the existence of such a status, but with respect to only two participating States. Be that as it may, bilateral agreements were concluded not only to resolve the negative consequences of dual citizenship, but also to eliminate them. In this regard, we consider it justified to distinguish two types of dual citizenship agreements, each of which deals specifically with dual, and not multiple citizenship.:

1. agreements aimed at reducing and eliminating the phenomenon of bipatrism;

2. agreements aimed at resolving problems caused by such a status, and sometimes at encouraging such a status and stimulating the growth of the number of bipatrides.

An illustrative example of the first type of treaties are the "Bancroft Treaties", which are a series of bilateral agreements between the United States of America and a number of countries, named after the American diplomat George Bancroft, aimed at reducing cases of dual citizenship. In addition to the problem of bi- and polypatrism, these treaties also solved the problem of circular migration, which was common among immigrants to the United States, many of whom returned to their homeland on a permanent basis. For example, the agreement with the North German Confederation stipulated that a German immigrant naturalized in the United States would be considered an American citizen only after the expiration of a five-year period of permanent residence on the territory of this country. The same approach was applied to American citizens naturalized in Germany ^[7].

The issue of military service of bipatrides has often been the subject of regulation of bilateral agreements. In the same Bancroft agreements, considerable attention was paid to this issue. Thus, the US Treaty with Austria-Hungary provides that a former citizen of Austria-Hungary, recognized as a US citizen after a five-year period of residence there, is subject to trial and punishment, according to the laws of Austria-Hungary, for non-performance of military duty in the following cases: first, if he emigrated after conscription; second, if he wassecondly, if he emigrated while serving in the army; thirdly, if, having leave for an unlimited time, or belonging to a reserve or militia, he emigrated after receiving a draft into the army, or after a public announcement requiring his appearance, or after the outbreak of war ^[8]. This approach was actively used in the US treaties with other countries, in connection with which A.A. Grigoriev was rightly called American ^{[9, p. 15]}.

Agreements on military service of bipatrides were concluded between France and Israel ^[10], the Netherlands and Italy ^[11], Denmark and France ^[12], Spain and Italy ^[13], France and Switzerland ^[14], France and Italy ^[15], Argentina and Germany ^[16], Argentina and the Netherlands ^[17] and others. Common to these conventions was the provision on military service only in one of the contracting States, which was determined by domicile.

The Soviet Union led an active policy of non-recognition of dual and multiple citizenship, aimed at reducing the cases of their occurrence. Such an attitude to the phenomena of bi- and polypatrism was dictated by the ruling ideology and was reflected in national legislation: the law "On Citizenship of the USSR" forbade citizens of the USSR to be citizens of a foreign state ^[18]. The USSR is obviously interested in concluding bilateral agreements on reducing cases of dual citizenship, including treaties with Mongolia ^[19], Romania ^[20], Poland ^[21], Czechoslovakia ^[22], Bulgaria ^[23], Albania ^[24], the DPRK ^[25], Germany ^[26]. All the above-mentioned international treaties contained identical provisions according to which the contracting States intended 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.

Bilateral agreements on dual citizenship, which were actively concluded between other countries, contain quite similar provisions. Treaties between Poland and Bulgaria ^[27], Poland and Czechoslovakia ^[28], Bulgaria and Mongolia ^[29], Poland and Mongolia ^[30], the Netherlands and Suriname ^[31], Hungary and Germany ^[32] contain provisions that a citizen of one of the parties upon naturalization in the other Contracting Party automatically loses its citizenship of origin. A number of treaties also provide for the possibility of choosing by the individual himself which of the nationalities to retain by submitting an application to the relevant departments of the States.

Thus, the contracts assigned to the first group are quite numerous, which cannot but speak of their effectiveness in resolving certain issues. However, it should be noted that due to the change in the domestic policy regarding bi- and polypatrism, most of these agreements are losing their relevance today, giving way to a more loyal approach, reflected in the adoption of agreements that we have assigned to the second group.

The main distinguishing feature of the second type of dual citizenship agreements is their focus on solving the problems that such a status generates, which fundamentally distinguishes them from the first type of agreements aimed at reducing and eliminating bipatrism as such.

An illustrative example of the use of bilateral agreements to preserve cultural and other ties with related peoples through bipatrism are the agreements concluded by Spain with more than ten Latin American countries since the middle of the XX century. So, these are treaties with Ecuador ^[33], Bolivia ^[34], Paraguay ^[35], Peru ^[36], Guatemala ^[37], Dominican Republic ^[38], Nicaragua ^[39], Costa Rica ^[40], Bolivia ^[41], Ecuador ^[42], etc. The agreements are relatively identical in structure and content, contain provisions according to which only one of the nationalities of a person who has the citizenship of both contracting parties acts, while the second citizenship is suspended, but can be activated by the application of the interested person ^{[43, p. 202]}.

In the Russian Federation today, the possibility of having two citizenship is recognized at the constitutional level. For Russia, the increasing relevance and practical relevance of dual citizenship is associated with the collapse of the USSR and other federations, the subsequent formation of the CIS, the development of economic ties between states participating in various international organizations and integration associations, as well as the expansion of migration processes due to various modern trends that are characteristic of globalization, integration, etc. The need to address the phenomenon of dual citizenship citizenship in order to maintain historical and cultural ties with related peoples, however, was not fully realized, but was embodied only in the conclusion of four dual citizenship agreements, one of which was terminated unilaterally and two of which have not yet entered into force. In the early 90s of the XX century, agreements on dual citizenship were concluded with Tajikistan ^[44] and Turkmenistan (not valid) ^[45]. Contracts define the competence of the parties in the exercise of the rights and obligations of bipatrides. Since the recognition of the independence of the Republic of Abkhazia and the Republic of South Ossetia by the Russian Federation in 2008, attempts have been made to conclude agreements on dual citizenship, which were implemented only after more than ten years. Thus, the dual citizenship agreement was signed with South Ossetia in 2021 (it will enter into force from the date of the exchange of instruments of ratification). According to the Agreement, "citizens of one Party have the right to acquire the citizenship of the other Party without renouncing their existing citizenship of this Party" ^[46]. The Treaty on Friendship, Cooperation and Mutual Assistance between the Republic of Abkhazia and the Russian Federation contains a provision allowing citizens of one party "to have the citizenship of the other party on the terms and in accordance with the procedure established by the legislation of the party whose citizenship is acquired" ^[47]. The same document states the intention of the parties to conclude a dual citizenship agreement. An agreement has been reached between the parties, and work is underway to sign it between the relevant departments of the countries ^[48].

A significant number of problems associated with dual and multiple citizenship stem from the lack of proper legal regulation, in particular international. The multilateral agreements developed in the XX century, which in one way or another and even directly affect the problems of bi- and polypatrism, however, do not cover the entire range of relationships relevant today. The legal status of bipatrides, drawn up in accordance with a bilateral agreement, is more regulated in the part that is defined by this agreement. However, in the absence of such acts, a number of problems arise in the legal regulation of the status of bi- and polypatrids, namely, problems with taxation and fulfillment of tax obligations by a person, military service, work in state structures, as well as with diplomatic protection of a citizen when he is outside the state. All this, of course, actualizes the issues of citizenship in international law, taking them beyond the limits of domestic regulation.

Despite the changed paradigm regarding the adoption of bi- and polypatrism as integral elements of modern interstate communication, bilateral agreements on dual citizenship, however, are not as ubiquitous as one might expect. We consider it impossible to resolve the multidimensional problems caused by bi- and polypatrism by bilateral agreements alone, since they are limited in their operation to only two participating States. Multilateral treaties on citizenship issues contain neutral provisions regulating issues of dual and multiple citizenship only indirectly, that is, leaving full discretion to States in terms of allowing or preventing the preservation of this status. All of the above quite rightly leads to the conclusion that it is necessary to develop a new approach to the international legal regulation of multiple and dual citizenship.