Access to citizenship : A comparison of twenty five nationality laws

Patrick WEIL

 

 

 

 

Nationality rests alongside territory at the heart of the definition of a nation-state. If territory determines the geographical limits of state sovereignty, nationality determines its population. Beyond these limits one will find foreign land, foreign sovereignty and foreigners. Drawing the boundary whithin which some human beings are included and others excluded as foreigners, permitting some of them to acquire citizenship with certain conditions and some citizens to lose citizenship all this is a state prerogative which requires legal tools. Nationality law is a made up of these tools. They can be compared to different "colors" which are subsequently mixed so as to achieve a desired effect. Two of these colors are always mentioned in nationality laws:

- birthplace – or jus soli: the fact of being born in a territory over which the state maintains, has maintained, or wishes to extend its sovereignty ; - bloodline – or jus sanguinis : citizenship is the result of the nationality of one parent or other more distant ancestors ;

Two other "colors" are often forgotten or neglected :

- marital status, as marriage to a citizen of another country can lead to the acquisition of the spouse’s citizenship ;

- past, present or future residence in the country’s past, future or intended borders (including colonial borders).

The mixture of these features determines the conditions under which nationality is granted in any country in the world. It also determines techniques through which citizenship is either attributed or acquired. Both these features and the techniques constitute the particular legislation of one country, its national "configuration". Nationality law is not only a matter of public policy : it also legally constituted on the boundary between public and private law. For the former, determination of nationality is a element of a sovereign state, an inherent part of its power to decide how citizenship is attributed or acquired. As for private law, nationality determines the way national law regulates one’s life in such diverse matters as property rights, travel rights, equality of gender within marriage, right to inheritance etc… Nationality law also stands on the boundary between domestic and international law. Since the attribution of nationality is inherently part of a state’s sovereignty, legal conflicts are likely to emerge as soon as citizens from one country develop a relationship with either the territory of another country or one of its citizens. Sometimes, these relations lead to an intermingling of laws as seen in the growing recognition of dual citizenship, and sometimes they lead to the disappearance of one’s legal link to a state, statelessness.

Consider the complexity of nationality law. Each state’s law is simultaneously based on juridical traditions, nation-state building, international influence and the role played by migration (emigration & immigration) or the presence of minorities. In a comparative study of twenty-five countries: Australia, the Baltic States (Estonia, Latvia and Lithuania), Canada, the European Union (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom), Israel, Mexico, the Federation of Russia, South Africa and the United States.

Divergence between the nationality laws of different countries has been sometime presented as reflecting varying essential or dominant conceptions of the nation (Brubaker, 1992), which they are not.

The most commonly adopted classification posits a divergence between regimes based predominantly on the principle of jus soli and those based on jus sanguinis. Regimes associated with the former principle are presumed to be more inclusive and less ascriptive than regimes based on the latter principle, which relies on blood-based descent as a fundamental criterion for nationality acquisition. This reliance has led many academic and popular observers to attribute a jus sanguinis regime to the ethnic character of its framer’s conception of nationhood and as a general expression of the state’s national self understanding. But such generic explanations prove highly problematic when tested against the historical record of many states.

To take two European examples, France is frequently portrayed as having a strong integrative national identity forged through its revolutionary experience ; but the principle of jus sanguinis (with no ethnic overtones) dominated its national legislation throughout most of the nineteenth century (1803-1889). By contrast, the modern German national self- understanding has often been depicted as almost paradigmatically ethnic in character -- but since 1998 the German government has been moving toward making its nationality law more inclusive in ways that combine a mixture of jus sanguinis and soli elements. In the aftermath of the 1870 Franco-Prussian war, French and German philosophers and politicians battled over two very different conceptions of nations while France and Germany kept nationality laws based both on jus sanguinis (Weil, 1996). On the other hand, under Nazism, both Germany and France implemented racist and anti-Semitic legislation, while keeping opposite criteria, (jus sanguinis and jus soli respectively), as the basis of their nationality laws. Differences in nationality laws cannot therefore be explained by difference in the philosophical conception of nations. But what can explain the convergence between nationality laws? This convergence is illustrated by the recent changes which have occurred in many of them, reflected by the following four charts drawn according to the mode of access to citizenship (see pp. 5-8) : nationality of origin, naturalization, marriage, specific provisions for second- and third-generation migrants.

To understand differences and similarities between different legislation, one must take into account two main factors: legal tradition and the disconnection between territory and constituted population, illustrated by the phenomena of  emigration and immigration. In fact, we will show that starting with different legal traditions and different historical patterns of immigration, emigration and minorities, convergence occurs, through different paths and national political agendas, because in the context of the stabilization of borders and of incorporation of democratic values, many of these countries came to deal with new problems of immigration : jus soli states became slightly more restrictive and jus sanguinis ones moved towards jus soli.

Nationality of origin

Jus soli (date of inclusion)

Jus sanguinis (date of inclusion)

Australia

Yes(one parent citizen or permanent resident, or the child himself if permanent resident for 10 years from his birth)

Yes(one parent citizen and registration in a Consulate within 18 years after birth)

Austria

No

Yes (1811)

Belgium

No

Yes (1831)

Canada

Yes

Yes (loss of citizenship in 3rd generation unless residence or special connection with Canada before 28)

Denmark

No

Yes (1898)

Estonia

No

Yes

Finland

No

Yes (1941)

France

Yes (for the third generation, 1889)

Yes (1803)

Germany

Yes (with condition : dual citizenship : 1999)

Yes (Prussia : 1842)

Greece

No

Yes(1856)

Ireland

Yes (1935)

Yes (1935)

Israel

No

Yes (1950 Law of Return)

Italy

No

Yes (1865)

Latvia

No

Yes

Lithuania

Yes (with condition : dual citizenship)

Yes (1991)

Luxembourg

No

Yes(1804)

Mexico

Yes

Yes (not beyond second generation)

Netherlands

Yes (for the third generation)

Yes(1888)

Portugal

Yes (with condition of residence)

Yes, 1st rank(if alone, obligation for the applicant to declare his will)

Russia

Yes (under condition)

Yes (1864)

Spain

No

Yes(1837)

South Africa

Yes (both parents permanent residents)

Yes (notification of the birth to S.A authorities)

Sweden

No

Yes (1894)

United Kingdom

Yes (with condition of residence)

Yes (No transmission to 3rd generation unless residence established in the UK before the birth of the child)

United States

Yes (by Constitution, 1868)

Yes No transmission to 3rd generation unless residence established in the US before the birth of the child)

Naturalization

 

Residence

Knowledge of history

Knowledge of language

Loyalty oath

Sufficient income

Good character

Absence of conviction

Renunciation ofprior citizenship

Australia

Permanent No less 1 out of 2 years before appl. No less 2 out of 5 years before appl.

-

Yes

-

-

Yes

-

-

Austria

10 years

-

Yes

Yes

Yes

-

Yes

Yes

Belgium

3 years

-

-

-

-

-

-

-

Canada

Perm.3 years out of 4 before appl.

Yes

Yes

Yes

-

-

Yes

-

Denmark

7 years

-

Yes

-

Yes

-

Yes

-

Estonia

5 years

Yes

Yes

Yes

Yes

-

-

-

Finland

5 years

-

-

-

Yes

-

Yes

-

France

5 years

-

Yes

-

Yes

Yes

Yes

-

Germany

Permanent 8 years

-

Yes

-

Yes

-

-

Yes

Greece

5 years after appl.Or 10 out of 12 before

-

-

-

-

-

-

-

Ireland

1 year continuous resid. bef. Appl.and 4 out of 8 before appl.

-

-

Yes

-

Yes

-

-

Israel

Permanent ; 3 out of 5 y bef. appl.

-

Yes

-

-

-

-

Yes

Italy

10 years

-

-

-

-

-

-

-

Latvia

5 years before 1990

Yes

Yes

Yes

Yes

-

-

-

Lithuania

Permanent Previous 10 years

-

Yes (test)

Yes

Yes

-

-

Yes

Luxembourg

10 years Continuous resid. for past 5 years

-

Yes

-

Yes

-

Yes

Yes

Mexico

5 years

Yes

Yes

-

-

-

-

Yes

Netherlands

Perm. or habitual for 5 consecutive years before appl.

-

Yes

-

-

-

-

-

Portugal

10 years

-

Yes

-

Yes

Yes

-

-

Russia

5 years

-

-

-

-

-

-

-

Spain

10 years

-

-

-

-

-

-

-

South Africa

Perm. Continuous for 1 year before appl. Resident for 4 out of 8 y. bef. appl.

-

Yes

-

-

Yes

-

-

Sweden

5 years

-

-

-

-

-

Yes

-

UK

Main residence or Crown service5 yrs. Residence

-

Yes

-

-

Yes

-

-

USA

5 yrs. permanent settling

Yes

Yes

Yes

-

Yes

Possibly

Yes*

 

Marriage

Existence of a specific provision

Residence

Delay

Other requirements

Australia

No

-

-

-

Austria

Yes

1 + 4y of res.Or 2 +3 y of res.

1 year

-

Belgium

Yes

3 years

-

-

Canada

No

-

-

-

Denmark

No

-

-

-

Estonia

No

-

 

-

Finland

Yes

3 years

2 years

-

France

Yes

-

1 year

Facilitated naturalization (By declaration)

Germany

Yes

5 years

-

-

Greece

No

-

-

-

Ireland

Yes

-

3 years

-

Israel

Yes

-

-

Discretion of the Minister of Interior

Italy

Yes

6 months in Italy or 3 years together abroad

-

No commitment of certain crimes

Latvia

No

 

-

-

Lithuania

No

-

-

-

Luxembourg

Yes

3 years

-

Proof of life in common

Mexico

Yes

2 years

-

-

The Netherlands

Yes

3 years

-

-

Portugal

Yes

3 years

-

-

Russia

Yes

-

-

Facilitated naturalization

Spain

Yes

-

1 year

-

South Africa

Yes

-

2 years

-

Sweden

Yes

Permanent residence (3 years)

2 years

-

United Kingdom

Yes

3 years

-

-

United States

Yes

3 years

-

same as other aliens

Second generation immigrants*

 

Entitlement to citizenship

 

Existence of a specific provision

Residence

Age

Other information

Australia

Yes

Automatic

None

-

-

Austria

No

Yes

6 or 4 years instead of 10

-

Naturalization

Belgium

Yes

Yes

Parents residents for ten years

Before 12, Between 18 and 30

Registration

Canada

Yes

Automatic

None

-

-

Denmark

Yes

Yes

10 years (continuous residence

21-23

Declaration

Estonia

Yes (Dec. 1998)

Yes

Birth ?

Before 15

Application by parents

Finland

Yes

Yes

10 years

21-23

Declaration

France

Yes

Yes

5 years( non- continuous)

After 13

With parents’ consent at 13 ; by request at 16 ; automatic at 18

Germany

Born in Germany

Yes

Yes

Parents permanent residents

At birth

At 23 : Dual citizenship

Non Born in Germany

Yes

Yes

8 years, incl. 6 in primary education and 4 in secondary

16-23

Dual citizenship Registration and absence of criminal conviction

Greece

No

No

-

-

-

Ireland

Yes

Automatic

None

-

-

Israel

No

No

-

-

-

Italy

Yes

Yes

Continuous since birth

Majority -

-

Latvia

Yes (June 1998)

Yes

-

-

Birth after 1990

And application by the parents

Lithuania

Yes

Yes

None

-

-

Luxembourg

No

No

 

-

-

Mexico

Yes

Automatic

None

-

-

The Netherlands

Yes

Yes

Continuous since birth

18-25

Declaration

Portugal

Yes

Yes

None

Anytime

Parents residents 10 years or 6 if from Port.-speaking country)

Russia

No

No

-

-

-

Spain

Yes

Yes

1 year

18-20

Declaration

South Africa

Yes

Yes

 

 

Parents permanent residents

Sweden

Yes

Yes

10 years

21-23

Declaration

United Kingdom

Yes

Yes

None (1981)

-

Parents permanent residents

United States

Yes

Automatic

None

-

-

* In the case of the EU countries, the information is mainly taken from Hansen, 1998.

The different legal traditions

Were a population and territory to exactly match, attributing citizenship on the basis of jus sanguinis or jus soli would not make any difference. It would concern the same people and would have the same juridical effects. In eighteenth-century Europe, jus soli was the dominant criterion of nationality law in the two most powerful kingdoms : France and United Kingdom. It was the transfer of a feudal tradition to the a state level : human beings were linked to the lord who held the land where they were born. The French Revolution broke from this feudal tradition. Because jus soli connoted feudal allegiance, it was decided, against Bonaparte’s wish, that the new Civil Code of 1804 would grant French nationality at birth only to a child born to a French father, either in France or abroad. It was not ethnically motivated; it only meant that family links transmitted by the pater familias had become more important than subjecthood. This French innovation, i.e. the reintroduction of Roman Law into the modern world, through codification, progressively became the law of continental Europe. The following countries adopted in their civil code, jus sanguinis : Austria (1811), Belgium (1831), Spain (1837), Prussia (1842), Italy (1865), Russia (1864), Netherlands (1888), Norway (1892) and Sweden (1894) .

On the contrary, the British tradition of jus soli was transplanted to its colonies in North America (the US and Canada), Europe (Ireland), Africa (South Africa), and A0.ustralia. It also influenced Portugal and Denmark until Nordic countries decided to adopt a common nationality regime in the 1920’s.

 

 

The disconnection between territory and constituted population

When disconnection occurs between territory and constituted population, one can distinguish between countries of immigrants, of immigration, of emigrants and of emigration.

1. "Countries of immigrants" are the ones constituted by immigrants ; the majority of citizens thereof are immigrants or descendants of immigrants. The United States, Canada, Australia, and South Africa until recently can be included on this list.

2. "Countries of immigration" are the ones where a foreign population has settled as permanent residents. In these countries, there is nevertheless a dominant feeling of the existence of a core and majority population installed since time immemorial and not descended of immigrants ; an immigrant population have come in addition to this core population. In Western Europe, France has been in that situation since the middle of the nineteenth century. Since World War II, all Western Europe countries have turned from being countries of emigration to countries of immigration. South Africa is also a country of immigration, a situation that developed since the abolition of apartheid. In a different manner but with the same consequences, the Baltic states are countries where a strong Russian minority resides.

3. "countries of emigrants" is a one where part of the core population is located outside the boundary of the state, living in another state territory; yet, there is a perception that the link is maintained with their country of origin. Germany between 1913 and 1933 and between 1949 and 1989, Russia since 1989 and Israel, as we will see later, can be categorized as such.

4. Finally, there are "countries of emigration" where parts of the population often emigrated so as to built a new life in another country. This applies to the majority of European countries until World War II (with the exception of France) and Mexico since the 1930’s.

When a legal tradition is perceived to fulfil state interest in terms of migration, or at least does not oppose to it, the core of the national legislation is maintained.

In countries of immigrants, jus soli allows immigrants’ children to automatically acquire American, Canadian and Australian citizenship. Great Britain and Ireland were countries of emigration; in order to keep links with their nationals abroad, both added jus sanguinis provisions to their jus soli ones. Jus soli could remain in effect as long as they were not becoming countries of large-scale immigration.

For continental European countries that were countries of emigration, jus sanguinis allowed the maintenance of links with citizens abroad until their descendants lost touch.

But since World War II, convergence has occurred.

First, countries whose nationality laws were predicated upon jus soli attracted a number of immigrants that greatly exceeded public policy choices into their territories, which forced them to become more restrictive.

For instance, Great Britain had an imperial and extensive conception of the territory so that jus soli encouraged involuntarily immigration. Before the Second World War, all subjects of the British Empire were equal in the allegiance to the monarch and all persons born on the territory of the Empire could access British citizenship simply by residing in the territory of the United Kingdom proper. Following the Canadian example, the 1948 legislation on nationality had taken into account the emergence of separate forms of citizenship, the most important of which was the British one and that of the Commonwealth countries. The sum of these six forms of citizenship was the concept of British nationality. After this extensive approach to jus soli led to the arrival of an unexpected number of colonial immigrants to United Kingdom who soon became citizens, British legislation on nationality underwent a swift and silent revolution away from extended and pure jus soli. From the mid-fifties on, Great Britain modified its legislation to restrict further immigration from Commonwealth countries. The passing of the Commonwealth Immigrants Act in 1962 and of the Immigration Act in 1971 put limits to their freedom of entry into the UK and created an intermediate distinct category between nationals and aliens : patrials, or those benefiting from a right of abode. This right was attributed to citizens of the United Kingdom or to those of the colonies provided that they were born, adopted or registered in the territory of the UK, or that they had been residents in the UK for at least five years. The 1981 legislation created a British citizenship. It automatically attributed jus soli to children born in the UK of a British citizen or of a non-British permanent resident born in the UK. Otherwise, a minor could acquire British citizenship if he resides in the UK for ten continuous years prior to applying. In addition, British citizenship is automatically attributed through jus sanguinis to the first generation born abroad. At the next generation, the descendant of the British citizen has to settle in the UK ; otherwise he loses his British citizenship .

The British evolution might soon be on the agenda of the Irish Parliament as Ireland has recently become a country of immigration. Ireland which was in the last decade, the only remaining country of emigration in Western Europe, has recently received more and more immigrants. The migratory balance has shifted in favor of immigration since 1995 (in 1998 45 000 vs. 20 000) and the number of asylum seekers have risen (from 39 in 1992 to 4626 in 1998).

In the United States also, jus soli gives also access to citizenship by children of illegal aliens . But the resources needed to restrict its jurisdiction are not easy to gather ; since the incorporation of the XIVth amendment the jus soli provision is part of the US Constitution. It attributes US citizenship to all persons born in the jurisdiction of the federal state . Schuck and Smith have argued that the XIVth amendment was never intended to apply so broadly .

On the same restrictive ground, one other move has to be mentioned : each of the twenty-five chosen countries, which had a provision for the automatic acquisition of citizenship through marriage in its legislation repealed it within the last forty years. Such was the case in Sweden in 1950, Denmark in 1951, Portugal in 1959, Italy in 1983, Belgium in 1984, Greece in 1984, and Israel in 1996. Moreover, it can be noted that the delays required before a foreign spouse can apply for citizenship have frequently been lengthened. In all cases, the repeal of the automatic nature and timely consideration of citizenship found their origin in the will to insure equality of treatment between men and women and the decrease of the religious sanctity of marriage, but in many cases, they were also justified by the public authorities’ will to avoid fraudulent marriages with illegal aliens.

On the other hand, a disconnection between the legal tradition and immigration has occurred in the cases of continental European states when, following a legal tradition of jus sanguinis, these became countries of permanent immigration.

France was the first country to face this contradiction at the end of the nineteenth century. France, frequently considered as having a open conception of nation based on integration of immigrants, had its nationality legislation dominated by some jus sanguinis with no ethnic signification for the largest part of the nineteenth century (1804-1889). In the years after the 1804 civil code adopted jus sanguinis, this legislation had unanticipated social consequences. The majority of individuals born on French territory to foreign parents, even though they belonged to families who had lived on French territory for an extended period of time, were in no hurry to claim their French citizenship. In fact, they were escaping the military draft. Therefore, on February 7, 1851, a law introduced optional double jus soli : an individual born in France to an alien father born in France was a French citizen at birth. He or she could renounce his or her French citizenship at the age of majority. This option was withdrawn with the 1889 law: to fulfil the principle of equality of public charges and duties, third-generation ‘immigrants’ were automatically granted French citizenship. Since then, double jus soli has been at the heart of French nationality. It is both a mechanism for granting French nationality automatically to third generation ‘immigrants’ born in France and the simplest means by which French citizens prove their nationality. In addition to double jus soli, a child born in France to foreign parents born abroad, becomes French not at birth but at the age of majority, unless he or she expresses the wish to remain a foreigner (Weil, 2000).

Meanwhile, until World War II, the other continental European states remained countries of emigration and maintained jus sanguinis as the prevalent criterion of access to nationality of origin. Afterwards, they progressively realized that, as a result of large-scale immigration, large parts of the population born in their territory, namely second- and third-generation immigrants, were unable to easily access citizenship.

Large-scale permanent immigration created a pressure in favor of provisions guaranteeing permanent residence to long-term immigrants and opened the way for their right to accede to citizenship. In the seventies, the French and German Supreme Courts recognized the right of permanent residence to foreigners living in their territory. In one of its decisions, the French Administrative Supreme Court contested the attempt by the French government to forcibly repatriate the majority of legal North-African immigrants in 1978-1980. The government was forced to back down due to public and judiciary pressure. In June 1984, a law was even passed guaranteeing permanent residence to 95% of the foreign workers and their families. The same process had been under way in Germany. In 1972, the German Constitutional Court confirmed that a foreign worker's stay in Germany of more than five years was sufficient grounds "to deny further residency (authorization) as each extended residency (authorization) would tend towards settlement..." (Kanstroom Daniel.1991). This right of integration was then extended by the right to have access to citizenship (through jus soli or facilitated naturalization) for the second- and third-generation immigrants.

To secure access to citizenship of the third generation ‘immigrants,’ double jus soli has been formally included in the nationality laws of Belgium (art. 10) since 1992, France since 1889, Spain (art 17) since 1990, and in the Netherlands since 1953. It is a de facto access in Ireland in all cases and almost all cases in the United Kingdom and Portugal. Access to citizenship of the second generation occurs automatically at birth in Ireland, and under conditions of residence in the UK or Portugal. Yet, in the majority of European countries, access to citizenship occurs not automatically at birth, but on the basis of socialization and/or its voluntary acquisition(Weil & Hansen, 1999). In Belgium, Denmark, Finland, Netherlands, Italy and Sweden, a person born in the country to foreign parents can acquire citizenship at the age of majority after fulfilling certain residency requirements. In Belgium, it is acquired between the ages of 18 and 30 ; in Denmark, Finland and Sweden, between 21 and 23 ; in the Netherlands between 18 and 25, and in Italy, in the year following the age of majority. In Spain, naturalization can be requested by the parents one year after the child’s birth. Finally, throughout the European Union, with the exception of Greece, Austria and Luxembourg, access to second or third generation is facilitated, often the result of recent reforms. In the Austrian case, the last amendment adopted in June 1998 identifies two further ‘privileged’ groups of foreign citizens who may be naturalized after at least four or six years of residence: applicants who can prove ‘durable personal and occupational integration’ in Austria and applicants who have been born there. The latter category is significant because for the first time, birth in Austria has been introduced as a relevant factor in the acquisition of citizenship. However, foreign citizens born in Austria still do not have individual entitlement to naturalization.

There remains the case of Germany. When the 1842 Prussian legislation adopted jus sanguinis, it was the dominant principle in French nationality law. The Prussian law was not, moreover, ethnic in its origins: it included Polish and Jewish Prussians, and it excluded Germans from other German states. Jus sanguinis was reinforced in 1913 in a context in which Germany had become a country of emigration and of emigrants. German Empire became perceived in France in a logic of ‘ethnicity’ following the unification of the Germany in 1871 and the annexation of Alsace-Lorraine. This perception was reinforced in the US by 1913 law and in all the allied countries during the 1sr world war. But jus sanguinis became ethnic and racist in the Nazi period. It was maintained after 1949, as the way of maintaining legal ties with East Germans. But in France, at the end of the nineteenth century, the shift to jus soli could only occur with the coexistence of three factors : stable borders including the majority of nationals ; immigrants who had acquired the right of permanent settlement, and the consolidation of democratic values. Since the beginning of the 1970’s, Germany has become a country of permanent immigration and since 1990 the majority of German are reunited within the same borders and democratic citizenry. Conditions are therefore fulfilled for a European convergence of nationality laws.

This convergent guarantee of residence for foreign residents, linked with the idea of territorial nationality, belongs to that new paradigm of international law identified by Diane Orentlicher . This convergence has occurred in Western states through internal debate and along a parallel path. It has occurred in the Baltic States through another means, i.e. through the pressure of international organizations that emphasize the right of foreign residents.

The cases of Estonia and Latvia are most relevant in this respect. But the study of these cases requires first an examination of the situation of citizenship legislation of the three Baltic States at the time of their independence. When the latter occurred in 1991, it seemed that the three Baltic states would follow different paths. Whereas Lithuania and Estonia passed new citizenship laws in the next two years - 1991 in Lithuania and 1992 in Estonia, Latvia did not, only restoring citizenship to those who had it prior to the Soviet period (and their descendants). As the officials stated that such a law had to wait until the election of a new Parliament, the Latvian citizenship law was finally adopted on June 21, 1994. These three laws can be classified along an inclusive-exclusive line: Lithuania, combining jus soli and jus sanguinis provisions, being the most inclusive, and Latvia, with no jus soli and the establishment of the window-system providing each year for the examination of applications from certain categories of persons : in 1996, those born in Latvia who were 16 to 20 years old; in 1997, those who were up to 25 years old etc… those born outside Latvia have, in the original law, to wait until 2001-2003 to even apply .

The Latvian and Estonian post-independence nationality laws were criticized by intergovernmental organizations on the grounds of human rights, for they excluded from nationality entire portions of the population, especially long-term residents of Russian origin. As both Latvia and Estonia were potential applicants for entry into the Council of Europe and the European Union, one can notice the presence of an explicit linkage between a thorough and hopeful application and the respect by the applicant countries of the conditions determined by these intergovernmental organizations. In that respect, specific provisions regarding nationality and human rights in general were part of these conditions, and tend to conform exactly with the recent evolution in international law regarding the emergence of a territorial nationality. In Europe, this role of pushing countries towards more inclusiveness was indeed played by such organizations as the European Union and the Council of Europe, but also by the Organization for Security and Cooperation in Europe (OSCE), which undoubtedly was a significant actor in the recent changes in the nationality laws of both Estonia and Latvia. In the latter case, the OSCE High Commissioner on National Minorities had recommended the inclusion of several provisions: among them, the right for non-citizens to become citizens, the furthering of the naturalization process, the abolition of the windows-system, the granting of citizenship to stateless children born in Latvia, the limitation of the residence requirement to no more than 5 years, the reduction of the fee for naturalization, the simplification of the tests on the history and Constitution of Latvia. Through several amendments to the law on June 22, 1998, the Latvian Parliament fulfilled these recommendations, as stated the day after by the High Commissioner .

Moving from an approach mostly based on jus sanguinis and the restriction of naturalizations towards a more inclusive one, the Latvian example shows that the process is not over yet. In December 1998, Estonia modified its legislative provisions on the attribution of citizenship to second-generation immigrants, but they will only be effective by July 12, 1999. Nationality law is always a work in progress.

This process of convergence goes far beyond European Countries. It concerns almost all of the Carnegie’s countries as far as the three conditions found in the European cases are concerned: they have incorporated democratic values; they have stable borders; they perceive themselves more as countries of immigration than as countries of emigrants or emigration. When these three conditions are achieved, it seems that two distinct lines of convergence can be distinguished. In the first place, access to nationality has been restricted when the law was perceived as permitting easy access to residence without passing through immigration laws. In the second place, all provisions that did not provide for the facilitated integration of second- and third-generation immigrants were progressively overturned: access to citizenship has been opened to long-term residents and their children.

The convergence has been illustrated in the numerous changes which have occurred in many nationality laws. The technique used is different, usually by additional provisions concerning either the grant of nationality of origin, the second- and third-generation migrants or married people.

Those cases not following this pattern of convergence are the countries which fail to fulfil one of the three conditions mentioned above; in fact, the number of determining factors is reduced to only two as all case countries are democratic or in the process of democratization.

The first missing condition can be related to the migration situation: even if all countries in the study have a foreign residence population and citizens living abroad, the presence of immigrants in a territory is not sufficient in itself to cause the legislation modifications we mentioned so far when the interests and the attention of the state are focused on the maintaining of links with potential nationals residing abroad; when there is a dominant feeling that a large part of their population lives abroad; and when they are granting them more importance than foreign residents living in their territory. Such is the case of Israel. Even if the common perception is that Israel is a country of immigrants, theoretically speaking, the famous Law of Return can indeed be considered as a law which permits a returning person (oléh) descendant of a émigré to reintegrate into his country of origin. That is to say, from the viewpoint of national law, Israel is very much like an emigration country and not an immigration one. Such is the case of Russia who feel that a lot of its citizens are across its borders, in the territories of former soviet republics.

The provisions on Russian citizenship are contained in the Citizenship Act of November 28, 1991 (in effect from February 6, 1992) amended on June 17, 1993 and February 6, 1995. They provide that the child born to parents possessing Russian citizenship is a Russian citizen wherever he was born (art.14). Thus, jus sanguinis is the main mode of admittance to Russian citizenship.

The second main factor in divergence is non-stabilized boundaries. When they concern vital aspects of the nation, territorial problems or diasporas tend to make the passage to more inclusiveness impossible, and even unthinkable. Unstable borders favor jus sanguinis in the sense that it provides a more secure way to keep control of the citizenry; usually in that case, citizens are residing across the borders or large and irredential minorities are residing within. The most obvious case of the importance of this issue is the German example. Only after the Reunification was it possible for Germany to examine the issue of integration of children of immigrants which had remained untouched for a long time on the political agenda. The Israeli case is also significant in that respect. One must also remark that the interest of the State of Israel is much determined by the instability of its frontiers and by political conflicts linked to the Palestinian people. These circumstances may explain why the access to Israeli citizenship is not given to children born to non-Israeli parents.

Finally, the comparison of countries with very different geographical and historical situations leads one to take into account the weight of tradition in the establishment of rules for citizenship. These historical traditions in the matter of citizenship were in fact modified as soon as a disjuncture appeared between the consequences of traditional law and either the interest of the state itself, or that of individuals who could legitimately claim a right to become citizens. When they are faced with the key factors behind convergence - democratic values, stable borders, immigration - all nation-states have moved in the same legislative direction. There is, therefore, no causal link between the dominant approach of national identity and nationality laws.

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