국제법상 자연인이 가지는 국적포기(이탈)의 권리

No one can select his parents or his place of birth. This simple truth implies that the traditional principles for ascription of nationality – jus sanguinis and jus soli – do not regard human volition from the very beginning. The lack of choice is problematic for people who develop substantial ties with non-motherland via any reason, such as emigration or international marriage, but also for those who wish to throw off the formal bond of original nationality unilaterally and technically imposed by multiple states. In this vein, this article examines concept, history and normative status of the right of renunciation, and explores to what extend it would be asserted against the legislative competence of states and how the norm can modify traditional understanding of nationality. The article starts its discussion by introducing the philosophical underpinnings of common law doctrine of perpetual allegiance under which voluntary expatriation had been prohibited by the country of nationality. While nearly all of states now do not rely on this feudal maxim any more as the doctrine per se became a dead letter, state-oriented approach to nationality issue had remained intact until the League of Nations. The 1930 Hague Convention, for example, did not require a state to grant expatriation except when an individual possessed dual nationality without any voluntary act on his part. This was because, unlike today where multiple nationality is generally accepted or condoned, the main purpose of the Hague Convention was to abolish double nationality, thereby reducing conflict of laws. As the question of renunciation was strictly confined to a realm of state relations, renunciation was only available to people accidentally possessing dual nationality ar birth but not to those coming to that status through naturalization. On the contrary, the matter of renunciation under contemporary international law is no longer the exclusive domain of the state’s competence insofar as the freedom thereof is now recognized by most states. Albeit it is not found in any multilateral treaty yet, nearly all of the country in the world incorporate this right into their legal system, which supports the argument that the right to renounce nationality has become an international customary law. Moreover, by transforming a person’s right to voluntarily expatriate oneself into a duty of the member state to withdraw its nationality, the Article 8 of European Convention on Nationality imposes a state’s obligation to permit renunciation of its own citizens. The ratifying states of the Convention therefore are now clearly bound to respect the will of an individual to relinquish citizenship no longer desired. This example implies that the principal subject protected by international rules on nationality has been shifted from the state to the individual and the right of renunciation has been slowly but surely recognized and settled under the regime of international law in the context of human rights.