STATES generally limit dual or multiple citizenship. When they allow it, they often apply the principle of “effective” citizenship (also known as active or master nationality).
The current Cuban Constitution does not allow dual citizenship. The new draft Constitution, which from August 13 through November 15 is subject to a popular consultation process, proposes the principle of effective citizenship.
In essence, what the proposed change means is that on the adoption of another citizenship, Cubans do not lose their Cuban citizenship; and that when a Cuban citizen is in the national territory, he/she is governed by that condition and can only make use of that citizenship.
Effective citizenship is a recognized principle of customary international law, according to which each state has full jurisdiction to determine the conditions of the acquisition or loss of its citizenship.
From the point of view of Private International Law, the citizenship that has been conferred on an individual as real and effective must be regarded as the exact judicial expression of a social fact of a connection which existed previously, or came into existence thereafter.
The principle of effective citizenship then consists of applying as the determinant, sole, exclusive citizenship, that which coincides with that of the State in which the individual is located, a principle defended in modern doctrine by authors such as Larrea Holguín, who maintains that “the rights and obligations conferred by dual nationality are exercised only while residing in the respective country, leaving dormant the rights and obligations of the other nationality.”
As can be seen, effective citizenship is that exercised according to residence, when an individual holds more than one nationality, as it is the country where the individual fulfils his/her obligations and exercises his/her rights.
In this regard, Dr. Peraza Chapeu stated that cases of dual citizenship must be resolved through the use of the principle of effective citizenship. Thus the individual will be considered a citizen of the state whose citizenship he/she holds in which he/she usually resides and with which he/she is really linked. This citizenship status can be verified by measuring the period of interrupted or consecutive residence, or according to international travel by checking the individual’s passport and its correspondence with the citizenship that is used to enter other countries.
In this regard, it must firstly be emphasized that the state is entitled to exercise personal jurisdiction over its nationals (or its citizens in the internal context), as recognized by International Law, allowing for the adoption of certain measures wherever these nationals may be located. That is to say that nationals, natural or legal persons, remain subject to the regulatory power of the respective state, even if they cross its borders.
Second, diplomatic protection faced with the legal action of third states is justified on the basis of the same personal jurisdiction a state is entitled to exercise over its nationals. This protection can go as far as the exercise of international legal action, by which a state supports the claim of its national against the other state in question.
Thus, in practical terms, when a conflict of dual nationalities arises within a third state, this conflict is resolved according to the principle of effectiveness. That is, it must be investigated to which of the two states the individual has closer links (habitual residence, exercise of the right to vote, payment of taxes, military service, etc.).
It is thus understood that effective citizenship is that which is exercised on the grounds of residence, when an individual holds more than one nationality. This is precisely the argument put forward in Article 35 of the draft Constitution submitted for consultation to the Cuban people.
Effective citizenship empowers individuals to participate in the political community of a common endeavour. Within this line of reasoning, a special emphasis must be placed on the willingness of individuals to live together under the government of their country of origin.
OTHER RELATED PRINCIPLES
In this sense, it is necessary to differentiate the principle of effective citizenship from the concept of birthright citizenship, that is, that which is attributed to a person from birth by virtue of two criteria:
- By belonging to a certain descent line (jus sanguinis or filiation).
- By birth place (jus soli).
In accordance with Cuban regulations, citizenship by birth or origin admits the application of both principles with equal force. In this sense, those born in the national territory are considered Cubans by birth, provided that they are not the children of foreigners at the service of their government or international organizations in the country.
Those born abroad of a Cuban father or mother fulfilling an official mission are also Cuban citizens. This is a definition that, in our opinion, expresses the combination of both principles, with jus soli being admitted by application of the principle of extraterritoriality, since diplomatic headquarters are considered part of the territory of the represented state (Article 33 of the draft Constitution).
Another concept to consider is that of derivative citizenship, which is acquired after birth, usually through naturalization (Article 34 of the draft).
According to Cuban legislation, under the generic denomination of citizenship by naturalization, the derivative form par excellence is permanent residence.
In this sense, naturalization has been defined as “the attribution of citizenship made by the sovereign power to the foreign individual who has requested it. As a result of its acquisition, the foreigner is equated to the native-born citizen in terms of all rights and duties to the state.”
Meanwhile, Article 37 of the draft Constitution confirms that Cubans can not be deprived of their citizenship, except for legally established causes. Nor can they be deprived of the right to change their citizenship. The law establishes the procedure to be followed for the formalization of the loss and renunciation of Cuban citizenship and the authorities empowered to decide on it.
In this regard, it must be taken into account that up to the present, Cuban legislation and practice do not admit the automatic renunciation of citizenship. An administrative decision is required, through resolution, which is dictated on a discretionary basis. This is also a means for the state to protect national security.
Making renunciation automatic would mean allowing another state that grants citizenship in a derivative way to determine the loss of citizenship of origin. It would allow this second state to determine that the individual in question is not connected to the state that recognized his/her citizenship at birth. It would, in short, damage the sovereign power of the state to determine who its citizens are (Article 37 of the draft).
According to the draft, the power to decide in these cases lies with the President of the Republic (Article 123).
However, citizenship that is lost is also recoverable. The text of the draft Constitution recognizes this possibility, considering that the individual originally held said citizenship. In addition, it is international practice to recognize the individual’s right to recover their original citizenship (Article 38).
(Extracts from original article published on Las Razones de Cuba).