CYIL vol. 9 (2018)

IVANA JELIĆ CYIL 9 ȍ2018Ȏ not. These views are increasingly gaining their application in international political and legal documents, as well as in the guiding principles for the decisions of the European institutions. International jurisprudence has contributed to the interpretation of the concepts relevant to this issue. Namely, the ICJ clarified some of the issues of nationality, such as whether a person with multiple citizenships can achieve a diplomatic protection, and what an effective citizenship actually means. In the Case of Nottebohm, 23 the view was taken according to which a person with two or more citizenships can be deprieved from the right to diplomatic protection of the state if the citizenship concerned is not effective, or if there is no genuine, authentic and credible connection between the state concerned and the person who is its national. 24 Furthermore, the ICJ post the standards on effective citizenship. Whether a citizenship is effective, i.e. whether it causes the consequences, is assessed in relation to: the residence, the center of interest of the person concerned, family ties, participation in public life, loyalty to the tradition, interests and way of life of the community, the exercise of the rights and obligations concerning the citizenship, etc. 25 The problem of dual citizenship exists also in Montenegro, as the Law on Montenegrin citizenship does not allow it in principle, except in a few exceptions. One of them that did not live up to the practice is that dual citizenship can be obtained only on the basis of international treaties concluded by Montenegro, subject to reciprocity (Article 18 of the Law). However, a difficult question is how to solve the problem of already de facto established dual citizenship of approximatelly several thousand persons, mostly citizens of Montenegro and Serbia, who have effective citizenships of both the neighboring countries. Lege ferenda solution that would best protect the acquired rights of citizens would include the recognition of a dual citizenship for a limited category of person. In essence, two legal questions are raised here: 1. which date should be determined as the limit for accepting already de facto dual citizenshio, without the risk of being challenged by competent international institutions, and 2. is there a legally valid basis, unchallengeable by the international institutions, for the decisions on the loss of a Montenegrin citizen, in accordance with the Law, for Montenegrin citizens who acquired the citizenship of another state after the date of the Declaration on Independence of Montenegro – June 3 2006, since the Law on Citizenship of Montenegro, in art. 16, stipulates that Montenegrin citizenship is terminated by a Montenegrin citizen if he / she acquires the citizenship of another republic member or other state. The answer to the first question should be either the date when the Constitution of Montenegro was proclaimed (22 October 2007), or the date of signing of the future bilateral agreement. This is a solution which accepts the factual situation and which, with certainty, removes any risk on future disputes on these issues between the respective countries. As for the answer to the second question, it must be seen through the prism of the obligation of the provision in Article 12 of the Constitutional Law on the Implementation of the Constitution of Montenegro, which stipulates that “a citizen of Montenegro who had acquired the citizenship of another state by June 3, 2006, has the right to retain Montenegrin citizenship”, and if he /she has acquired another nationality after that date, he / she may have 23 Case Nottebohm , Liechtenstein v. Guatemala, ICJ Reports 1955. Available at: http://www.icj-cij.org/docket/ index.php?p1=3&p2=3&k=26&case=18&code=lg&p3=5. 24 Ibid , p. 23. 25 ETINSKI, R. Međunarodno javno pravo , ( Public International Law ). Pravni fakultet, Novi Sad, 2007, p. 231.

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