CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ RIGHT TO CITIZENSHIP BETWEEN INTERNATIONAL LAW AND POLITICS… in the specific case could be treated to refer indirectly also to the EU’s candidate countries, such as Montenegro is. Its increasing progress towards the EU integration is evident. 11 The international jurisprudence set also the standard of ‘existance of a genuine link” between the state concerned and the individual for the conferral of citizenship, as it is concluded by the ICJ in Nottebohm Case. 12 The Convention on the Nationality of Married Women from 1957 contains a basic rule that there is neither marriage nor divorce between domestic and foreign nationals, nor change of nationality by the husband during marriage, shall be ipso facto basis for the change of nationality of the women. This is also a rule that applies in the legal systems of most countries. However, the response to the question whether a woman married to a foreign citizen gets a citizenship of the state of her husband, if she wants so, is given by the internal law of that state concerned. The European Convention on Nationality from 1997 defines in art. 2, for its purpose, a nationality (citizenship is often referred as nationality in international documents) as ‘the legal bond between a person and a State’ emphasizing that it ‘does not indicate the person’s ethnic origin’. It also allows total competence of each state to determine under its own law who are its nationals, as stipulated in art. 3. According to the art 4 of the Convention, the rules on nationality of each state party shall be based on the following principles: everyone has the right to a nationality, statelessness shall be avoided, no one shall be arbitrarily deprived of his or her nationality; neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse. The Convention gives special attention to a state succession and nationality in art. 18 emphasizing the need for respect of the rule of law in matters of nationality in cases of State succession, as well as the rules concerning human rights and the principles of the Convention, obliging the state parties in particular to avoid statelessness. It is further emphasized that ‘in deciding on the granting or the retention of nationality in cases of State succession, each State Party concerned shall take account in particular of: the genuine and effective link of the person concerned with the State, the habitual residence of the person concerned at the time of State succession, the will of the person concerned; the territorial origin of the person concerned’. The ACFC’s jurisprudence shows that this expert body has constantly underlined the specific challenges concerning de jure and de facto stateless persons, drawing attention to the art. 4 of the European Convention on Nationality in the context of each person’s right to a nationality. On the other side, The American Convention on Human Rights from 1969, treats citizenship as a fundamental human right. Its provisions are based on the principle that citizenship is acquired by place of birth ( ius soli ), if one is not entitled to citizenship of any

11 Montenegro got an EU candidate status on the session of European Council held on16/17 December 2010. Until 2017 Montenegro has opened twenty-four out of thirty-five chapters, including the chapters no. 23 and no. 24 on the rule of law, and – except of two chapters on science and research, and education and culture, which were provisionally closed (Progress Report 2016: 85) – it undertakes the negotiations as its political priority. 12 International Court of Justice, Nottebohm Case, 1955, ICJ 4.

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