The Constitutionalization of International Law

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

Abstract

This paper examines the legality of current practices of extraterritorial naturalizations (i.e. the naturalization of persons retaining their residence abroad), notably the so-called "passportization policy" of the Russian Federation with regard to South Ossetia and Abkhazia (Georgia) and Transnistria (Moldova), as well as other extraterritorial naturalization policies such as those of Romania, Hungary and Germany. 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.