Extraterritorial Naturalizations: Between the Human Right to Nationality, State Sovereignty, and Fair Principles of Jurisdiction

Abstract

The paper examines the legality of current practices of extraterritorial naturalizations (i.e. the naturalization of persons retaining their residence abroad), notably in Central Eastern Europe. The relevant international legal principles are a possible human right to change one’s nationality, the prohibition of arbitrariness, the prohibition of an abuse of rights, state sovereignty, friendly relations, good neighborliness, and the stable repartition of jurisdiction. It is argued that these principles should be applied so as to strike a fair balance between the individual, governmental, and global interests at stake. This is achieved by demanding a factual connection between the naturalizing state and the individual concerned. Individual and collective naturalizations must be distinguished, but individual naturalizations on a large scale may in some circumstances amount to de facto collective ones. With regard to collective naturalizations, the necessary factual connection can only be provided by residence. Naturalizations overstepping the international legal limits (especially for want of a sufficient factual connection) are exorbitant and in international law terms illegal. They need not and arguably even must not be recognized by other states.

Keywords: Nationality, naturalization, human right to nationality, prohibition of arbitrariness, abuse of rights, sovereignty, good neighborliness, jurisdiction, state succession, right of option, extra-territoriality, non-recognition