“Everyone has the right to a nationality”

Interview with Gerard-René de Groot - Profesor of Comparative Law and Private International Law at Maastricht University

22 September 2016
Rene de Groot

ENS caught up with Professor Gerard-René de Groot on the eve of his farewell seminar and valedictory lecture upon his retirement from Maastricht University. We spoke about his latest book International Standards On Nationality Law, the need for a toolbox for nationality legislation and his plans for the future.

What motivated you to dedicate your career to nationality law, and what is the biggest difference in the field between now and when you started?

My interest in nationality law was triggered in my teenage years by some interesting cases dealing with the nationality position of several close relatives. I had one aunt with dual nationality. Another aunt always claimed that she was stateless, having huge difficulties being recognised as a national of the Netherlands by marriage after losing her Belgian nationality. A third aunt was Belgian national without voting rights.

I’ve started a more systematic study of nationality law after I finished my law degree at Groningen University in 1973 and received a scholarship to study in Germany. At the time German lawyers and politicians were dealing with the question of how to implement the principle of equal treatment of men and women in nationality law. I was fascinated by that discussion and wrote an article on the desirability to modify the nationality law in the Netherlands in order to align it with the equality principle. This article was the basis for my first book dealing with the equality of men and women in nationality law published in 1976.

At the time when I started to work on nationality law, this area of law was rather neglected. International standards dealing with acquisition and loss of nationality were really in their infancy. While the 1961 Convention on the Reduction of Statelessness was adopted in the week after I turned ten, it didn’t come into force until 1975, the year my first article on nationality law was published. Since then we've seen several international standards developed in international treaties, but also in case law of international courts and in international soft law instruments.

What in your view is the future of nationality law? In particular, how do you see the development of the relationship between nationality of a Member State and European citizenship?

It is of paramount importance to work on the further development of international standards regarding the acquisition and loss of nationality and we have to encourage States to implement those standards in their own nationality law. The national rules and practices should not be in violation of the international standards. In order to make those rules better accessible Olivier Vonk and I recently published the book International standards on nationality law: Texts, Cases and Materials. We hope that this book will contribute to a better implementation of the existing rules and enhance the desirability to develop additional standards to give guidance to national authorities dealing with nationality legislation.

Developing additional standards is also of great importance in the EU in light of the link between the nationality of a Member State and European citizenship. This was a subject of my inaugural lecture as visiting professor at Liège University in 2003 Towards a European nationality law. Moreover, in the period between 2013-2015 I also worked intensively on that issue in the context of the research project Involuntary Loss of European Citizenship (ILEC). Our project came to the conclusion that the continuation of the possession of the nationality of a Member State (and therefore of European Citizenship) is in some Member States much better protected than in others. That is problematic and the level of protection should ideally be the same in all Member States. The ILEC-project results were published in a book which I edited together with Sergio Carrera Nuñez European citizenship at the Crossroads: The Role of the European Union on Loss and Acquisition of Nationality.

The most important result of that project is the publication of the ILEC Guidelines 2015, which are intended to provide guidance on implementation of international and European standards on involuntary loss of nationality for government officials, legal practitioners, decisions and the judiciary in the Member States of the EU.

The title of your valedictory lecture is "Towards a toolbox for nationality legislation" - why is having a toolbox important and what should it contain, including in order to better prevent statelessness?

In my valedictory lecture I propose a new research project which should result in what I call a toolbox for nationality legislation. In light of the international standards which were developed in the past forty years we now should ask what kind of choices states have to make when regulating their nationality law. How much freedom do they still enjoy, which alternatives can they choose from and what are the advantages and disadvantages of options available to them?

First of all, the toolbox should describe all possible grounds of acquisition and loss of nationality from the relevant international standards. Subsequently, it should indicate how much room is left for States to create their own rules, what choices have to be made and the consequences that the different choices entail. For example, if a country makes a choice in favour of a rule that all children born on the territory acquire the nationality of the country (ius soli), there is no need for a default rule facilitating the access to the nationality of the country of birth for otherwise stateless children.  In other cases, the choice may have consequences beyond nationality law: for example deprivation of nationality because of terrorist activities may reduce the international criminal jurisdiction of the country involved.

In order to illustrate the proposed toolbox, I give seven examples (also available in the online version of the lecture to be published in October):

  1. Acquisition of nationality based on parentage (ius filiationis/ ius sanguinis)
  2. Acquisition of nationality based on adoption
  3. Loss of nationality due to residence abroad
  4. Loss of nationality due to activities seriously prejudicial to the vital interests of the State
  5. Loss of nationality due to loss of a family relationship
  6. Procedural safeguards
  7. Protection of legitimate expectations

The first five categories are modes of acquisition and loss of nationality. Examples six and seven have a more general character. Procedural safeguards are of importance for all grounds for acquisition and loss, whereas the protection of legitimate expectations can play a role in respect of most grounds for acquisition. I also indicate that i.a. the avoidance of statelessness should be a separate category to be elaborated, but of course the avoidance of statelessness is actually an issue that comes back constantly in the standards for all grounds of acquisition and loss of nationality. It is obviously the most important standard that exists.

The toolbox can be seen as a way to consolidate the existing international standards in an accessible way. However, it should not take the shape of a kind of model code of nationality. In the sensitive field of nationality – where States often have very strong and explicit feelings – such a code would go too far. Nevertheless, the toolbox should facilitate the debate between nationality law policy makers: a good picture of relevant rules on international level should be offered, together with an analysis of options between which choices should be made on a national level. Descriptions of good and bad practices should complete the picture.

How can academia and civil society best collaborate in the fight to eradicate statelessness, and how do you see the role of regional networks such as the European Network on Statelessness in helping to facilitate this?

When it comes to assessing the conformity of nationality regulations, academia and civil society should work closely together. National rules have to be assessed in light of international standards. The assessment should not only include a critical analysis of the law, but also the implementation in practice. Civil society actors are often better equipped to identify implementation difficulties in practice. It is essential that they share their findings with academics assessing existing rules. Moreover, civil society institutions like ENS are also pivotal in getting the knowledge on international standards, best practices and information on strategic litigation to practitioners. ENS also has an important role to play – together with the UNHCR – by convincing national legislators and other authorities that they should improve their nationality rules and practice and in particular to work on the eradication of statelessness.

What's next for Professor Rene de Groot - does retirement really mean retirement?

Some time ago I wrote about cases where authorities conclude that a person never acquired nationality although (s)he was treated as such for a long time. I labelled such situations as quasi-loss of citizenship. I also initiated a PhD-project on quasi-citizenship constructions which exist in some countries next to full citizenship, e.g. in India. Linked to these two expressions my colleague Guayasén Marrero Gonzalez (also working on nationality law issues) said to me with a broad smile: René, your retirement will be a quasi-retirement. You are not able to stop working on nationality issues. I guess Guayasén will be right. 

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