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Nationality, Personal Status and Private International Law

When asked about citizenship, many people will automatically link this concept to migration and voting rights. This is the well-known public law dimension of citizenship. Nationality is used in public law to distinguish nationals from aliens, and voting rights in national elections are normally only granted to citizens. It is less known that nationality, being part of one’s personal status, is used alongside residence as a connecting factor in the field of Private International Law (PIL) or Conflicts of Law – particularly in the field of personal status and family law. For example, what law governs divorce if spouses have different nationalities? Other common PIL issues are related to name, certificate of birth, marriage and parent-child relationships.

PIL is meant to designate the legal system that should deal with a case which has a cross-border element and is linked to several jurisdictions. It decides which court is competent to deal with a given case, the law of which country needs to be applied, and finally deals with the recognition and enforcement of legal decisions in other countries.

While nationality as a connecting factor has lost ground over time to habitual residence, or parties themselves are granted the possibility to choose the applicable law, an obvious problem arises when nationality is the connecting factor in cases which concern a dual or multiple national. In practice, therefore, it is the judge, much more than the legislator, who must confront the difficulties that result from dual nationality by deciding on the applicable law concerning dual nationals. Common practice in such a situation, and allowed under Article 3 of the 1930 Hague Convention, is that a national court disregards the foreign nationalities that their own national may possess. The foreign nationality will therefore have no bearing on the case. The other nationality is merely the result of the wide State discretion in nationality law, which allows States to decide autonomously to whom they grant their nationality; the national court seized is under no obligation to pay any attention to this foreign nationality.

If all nationalities are foreign, the solution commonly adopted is to determine a person’s dominant or effective nationality. In so doing, the judge will take into consideration various factors such as residence, spoken languages, identity documents and the fulfilment of military obligations. The principle of the effective nationality, as used in PIL, would be transplanted to the realm of public international law by Article 5 of the 1930 Hague Convention and was later used by the International Court of Justice in the famous Nottebohm decision.

In connection with PIL, a recent open access article by A.V.M. Struycken describes an important tension between secular and non-secular States. The PIL of secular States is characterized by openness to the outside world, which is inter alia reflected in the ‘extravert’ willingness to apply foreign law if this does justice in the case at hand. However, according to Struycken, ‘PIL questions with which secular States are confronted hardly arise for religious authorities’. Describing non-secular States as unilateralist and ‘introvert’, ‘for them the connecting factor is membership of the religious community regardless of nationality or habitual residence. For them, also, the close link of their law to the underlying religion makes it evident that they have exclusive jurisdiction’.

Any international coordination of systems of PIL, the basic principle underlying the Western approach, is of no concern to non-secular States. A 2005 resolution adopted by the Institut de Droit International, trying to reconcile the secular and non-secular approaches, therefore includes a statement saying that

States shall avoid using religion as a connecting factor for the purpose of determining the law applicable to the personal status of foreigners. They should make it possible for the latter to choose between their national law and the law of their domicile in cases where the State of nationality and the State of domicile differ.

Author: Dr. Olivier Vonk

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