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Dual nationality policies in Spain and Portugal towards their former colonies

States may actively pursue multiple nationality as a goal between different peoples, thus reflecting a development whereby individuals are allowed to identify with more than one State. Seen from this perspective, multiple nationality is no longer the inconvenient effect of State autonomy, but the object of legislation and – sometimes in the form of bilateral treaties – international cooperation.

Spain is in principle opposed to dual nationality, formally asking naturalization applicants to give up their original citizenship without however enforcing this requirement in practice. By contrast, it has been more than willing to embrace dual nationality with countries to which it feels historically and culturally connected, in particular the countries in Latin America. To that end, dual nationality treaties were concluded between Spain and Latin American countries in the 1950s and 1960s, creating the possibility of acquiring a dual nationality. Yet under this system, the two nationalities could never be active at the same time: the nationality of the country where the dual national was permanently resident was active, while the other was a so-called “dormant” or “hibernating” nationality.

While the situation in the Micheletti case from the early 1990s was different, we saw in our analysis that Spain relied on this type of reasoning by claiming that Mr Micheletti’s Italian nationality was ineffective because he had spent his entire life in Argentina as a citizen of that country before using his dual citizenship to move to Europe. The system of “dormant” nationalities would become obsolete in Spain due to subsequent modifications to Spanish legislation which allowed both nationalities to be active at the same time.

The dual citizenship policy cannot only be linked to Spanish colonial history, but also to the international isolation in which Spain found itself during the Franco regime and the country’s emigration history. For the greater part of the 20th century Spain was an emigrant sending country – in particular to Latin America – and dual citizenship allowed Spain to maintain ties with its diaspora.

Given the cultural and historical similarities between Spain and Portugal, one would expect to also encounter dual nationality treaties between Portugal and its former colonies. This is not the case, however. Although bilateral treaties exist between Portugal, on the one hand, and Brazil and some African countries, on the other, it is important to stress that these treaties are not about multiple nationality, but merely accord rights to nationals of the other contracting State that are normally reserved for the own nationals. Although application of these treaties will thus not have the effect of creating dual nationality, it has been argued by experts such as Rui Moura Ramos that the wide scope of the rights granted under the Portuguese-Brazilian treaty in particular, leads to similar results as when a dual nationality treaty had been concluded.

Portugal and Brazil signed the Convention on Equal Rights and Obligations on 7 September 1971 (ratified by Portugal on 22 April 1972). The essence of this Convention is that Portuguese in Brazil and Brazilians in Portugal have the same rights and duties as the host State’s nationals, apart from the rights that the Constitutions of both countries reserve for those who hold the nationality by birth. Nuno Piçarra and Ana Rita Gil explain that the 1971 Convention was the origin of the creation of a form of “Lusophone citizenship”, which gives nationals of Lusophone countries, on condition of reciprocity, rights that were not accessible to other foreigners (with the exception of higher positions in the government, and service in the armed forces and the diplomatic corps).

The “Lusophone citizenship” currently only exists in relation to Brazil, as only that country meets the reciprocity condition. It is thus interesting to see that Portugal, different from Spain, responded to decolonization from a perspective of citizenship and not of nationality. From the Brazilian perspective, Patrícia Jerónimo shows that Portuguese citizens with permanent residence in Brazil who enjoy the “equality status” as regulated by the Convention enjoy a quasi-citizenship status (quase nacionalidade) that has been acknowledged by the Brazilian Federal Supreme Court on several occasions.

Article 15(3) of the Portuguese Constitution lists the political rights available to citizens of Lusophone countries who permanently live in Portugal. As only Brazil has thus far met the condition of reciprocity, Brazilians permanently living in Portugal enjoy the same political rights as Portuguese nationals, without having to acquire Portuguese nationality. Although Brazilians are excluded from a few positions (e.g. president of the Republic), it is possible for them to be elected as Member of Parliament without having Portuguese nationality.

The bilateral treaties concluded with a number of African countries do not have as far-reaching consequences as the treaty concluded with Brazil. Although the starting point was the equal treatment of the nationals of the contracting States, this remained limited to rights of an economic and social nature. Equal status with regard to political rights has, to date, not been feasible.

Moreover, Portugal has a different relationship with each African country, which is expressed in the treaties accordingly. With Cape Verde and Guinea-Bissau, Portugal concluded treaties on the equal treatment of each other’s nationals. While being the most far-reaching treaties with an African country, they are of such a nature that they could just as well have been concluded with a country with which Portugal did not share a common history and language. A treaty on cooperation and friendship exists with São Tomé e Principe and provides for equal treatment concerning access to employment. The least interesting treaties are those with Mozambique and Angola, which only provide for cooperation.

Author: Dr. Olivier Vonk

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