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Nationality, Domicile and Habitual Residence - Does the New German Citizenship Law Call for a Change of a Principal Connecting Factor in Private International Law ?

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Nationality, Domicile and Habitual Residence - Does the New German Citizenship Law Call for a Change of a Principal Connecting Factor in Private International Law ? University of Georgia School of Law Digital Commons @ Georgia Law LLM Theses and Essays Student Works and Organizations 2000 NATIONALITY, DOMICILE AND HABITUAL RESIDENCE - DOES THE NEW GERMAN CITIZENSHIP LAW CALL FOR A CHANGE OF A PRINCIPAL CONNECTING FACTOR IN PRIVATE INTERNATIONAL LAW ? MARC CZIESIELSKY University of Georgia School of Law Follow this and additional works at: https://digitalcommons.law.uga.edu/stu_llm Part of the Civil Law Commons, Civil Rights and Discrimination Commons, Comparative and Foreign Law Commons, Election Law Commons, and the International Law Commons Repository Citation CZIESIELSKY, MARC, "NATIONALITY, DOMICILE AND HABITUAL RESIDENCE - DOES THE NEW GERMAN CITIZENSHIP LAW CALL FOR A CHANGE OF A PRINCIPAL CONNECTING FACTOR IN PRIVATE INTERNATIONAL LAW ?" (2000). LLM Theses and Essays. 287. https://digitalcommons.law.uga.edu/stu_llm/287 This Dissertation is brought to you for free and open access by the Student Works and Organizations at Digital Commons @ Georgia Law. It has been accepted for inclusion in LLM Theses and Essays by an authorized administrator of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. : NATIONALITY, DOMICILE AND HftBITUAlpiOENCE- = DOES THE NEW GERMAN CITIZENSHIP LAW GALLjOR A CHANGE OF A PRINCIPAL CONNECTlNGfACTOR IN PRIVATE INTERNATIONAL UM? Marc Cziesielsky I 15 BOIA I AW IIBHAHV 3 8425 00347 5188 Digitized by the Internet Archive in 2013 http://archive.org/details/nationalitydomicOOczie NATIONALITY, DOMICILE AND HABITUAL RESIDENCE - DOES THE NEW GERMAN CITIZENSHIP LAW CALL FOR A CHANGE OF A PRINCIPAL CONNECTING FACTOR IN PRIVATE INTERNATIONAL LAW ? by MARC CZIESIELSKY J. D., University of Gottingen, Germany 1999 A Thesis Submitted to the Graduate Faculty of The University of Georgia in Partial Fulfillment of the Requirements for the Degree MASTER OF LAWS ATHENS, GEORGIA 2000 ©2000 Marc Cziesielsky All Rights Reserved NATIONALITY, DOMICILE AND HABITUAL RESIDENCE: DOES THE NEW GERMAN CITIZENSHIP LAW CALL FOR A CHANGE OF A PRINCIPAL CONNECTING FACTOR IN PRIVATE INTERNATIONAL LAW ? by MARC CZIESIELSKY Approved: i^*^ Date c/doi Major Professor (L JIaPK^UL SU 7W^ Date Lf^jXtDO Chairman, Reading Committee proved: p. Graduate Dean (A Clam> Jvuv< l Date Acknowledgments I would like to dedicate this thesis to my parents and to my beloved fiancee Marina Korjova. Without the financial and mental support of my parents, this thesis would have never come into existence and I would not have had the opportunity to spend a wonderful year here in Georgia. Furthermore, the thesis and even my entire life would not have been what it is without the wonderful and strong emotional support by my fiancee who I have met here during my year at UGA. Marisha has done a wonderful job in helping me with holding up even in frustrating and difficult times of research and annoying word processing. Furthermore, I would like to expressly thank Mr. Gabriel Wilner, my major professor and "father" of the LL.M. students for the guidance and support offered during the last two semesters at UGA. Without him, the LL.M. program would not be what it is, and that is one of the best and most academic programs in the entire nation. Nowhere else could a combination between academic work (with the thesis) and work in classes about American law subjects be better combined than in this program. Thank y'all. IV Table Of Contents Page Acknowledgments iv Chapter I - Introduction 1 Chapter II - The newly enacted German Citizenship Law 5 A. Obtaining German nationality as a result of the introduction of the ius soli Principle and by naturalization 6 B. Details about the increase in number of citizens with double nationality. ... 9 C. Constitutionality of the new law 17 D. Conclusion 42 Chapter III - The solution under the current German Private International Law 43 A. Impacts of the new citizenship law on the application of article 5(1) EGBGB. 43 B. Evaluation of the current article 5(1) EGBGB - Time for a change ? 45 C Conclusion 55 Chapter IV - The Common Law concept of domicile 57 A. The English Concept 57 B. The American approach 67 VI C. Other Common Law jurisdictions 82 D. Conclusion 93 Chapter V - The Concept of habitual residence 95 A. The German concept 95 B. The approach of common law jurisdictions 100 C. The approach of Hague Conventions and the Council of Europe 103 D. Conclusion 107 Chapter VI - Concluding suggestions with respect to a change in article 5 (1) EGBGB 110 Appendix 114 Bibliography 117 - Chapter I Introduction On February 19. 1999. the State election in the German State of Hessen triggered a heavy reaction among those who were following the elections over television. More precisely, their response was divided along their political preference. Those in support of the governing party were shocked and those in favor of the opposition were enthusiastic. The reason for this reaction was that the former opposition had just won the State elections with a stunning and unexpected landslide victory. Although analysts may dispute the details, one element clearly stands out. Many voters from the entire spectrum of different parties voted for the opposition because of her preceding public campaign. A key part of this campaign was a successful petition against a new citizenship law. which was proposed by the new German federal government only a couple of weeks before the election. 1 The new law's purpose was to give legal aliens living in Germany a choice to become German citizens without having to give up the nationality which was conferred on them by their parentage or descent. The campaign led by the opposition sought to motivate people against the general granting of double nationality and was quite successful as the landslide victory showed. Giinter Renner. Grundgesetz und deutsche Staatsangehorigkeit [Constitution and German Citizenship}. Nele Justiz 230. 234 ( 1 999). 1 In the following months, the proposed citizenship law was significantly modified. A protracted legislative and highly political process led to a compromise between some of the opposing views and resulted in the creation of a combined ius soli and ius sanguinis principle. After the approval of the German Federal Council the new citizenship law was finally enacted by federal legislation in July 1999." This newly enacted law will have a significant impact especially on German private international law that is already in 3 discussion. It ended the domination of the ius sanguinis principle in German citizenship law and introduced elements of the ius soli principle, which were so far unknown to the German citizenship system. Although the law as finally enacted allows double nationality on a far more limited basis than the original draft, the effects of an expected increasing number of people with double nationality will most certainly demand an adjustment to certain German private international law sections. The major issue arises out of the fact that German private international law uses nationality as the predominant connecting factor in determining a person's legal status (e.g. marriage and marriage property law. right of succession and the right to the use of a name).' Apart from this main issue, however, there is also the matter of constitutionality. The opposition has already made it clear that it will attack the new law in the Federal Constitution Court on the grounds of being unconstitutional. If the new law is considered Gesetz zur Reform des Staatsangehorigkeitsrechts [Federal Law concerning the reform of Citizenship Law] v. 15.7.1999 (BGB1. I S. 1618-20). See Urs Peter Gruber, Kollisionsrechtliche Implikationen des neuen Staatsangehorigkeitsrechts [The Implications of the new German Citizenship Law on Private International Law], PRAXIS DES INTERNATIONALEN Privat- Und VEREAHRENSRECHTS 426-429 (1999) [hereinafter IPRax]. See Jiirgen Riittgers, Sie haben ein Flickwerk vorgelegt [You have submitted a patchwork], 21-22 DAS PARLAMENT 16 (1999); see also The Motion of the F.D.P. Parliamentary Group in BlTNDESTAGSDRUCKSACHE 14 / 867 P. 17 (1999). 5 ElNFUHRUNGSGESETZ Zum BURGERLICHEN GESETZBUCH [German Private International Law] art. 10, 13- 15, 25 (F.R.G.) [hereinafter EGBGB], to be unconstitutional, it is not likely to withstand the attack and the effects on German private international law will fade. For this reason, a part of this thesis will deal with constitutionality issues, which also involve a short glimpse at the principle of pacta sunt servanda in the field of international law. The general expectation across the entire political spectrum is that the number of people with double nationality will in increase. Therefore, since nationality alone cannot connect a person with the substantive rules of a particular system if that person has two 6 nationalities, the problems with this particular connecting factor are also likely to increase. One or more additional factors must then be used to reach a result. In Germany, this is achieved by introducing the concept of "effective" nationality in article 5 (1) of the Private International Law Code (EGBGB). One detail, which is set forth in this provision and will be given special consideration in this thesis, is the concept of rigidly preferring the German nationality to any other by declaring it to be the effective nationality in all cases. The expected increase of double nationality cases has already raised the issue of whether this particular code section should be modified. Furthermore, this thesis will question whether this rigid concept should be completely abolished after an assessment of both the constitutionality and the exact implications of the new citizenship law. In the light of the conclusions, the comparative part of this thesis will then focus on a more general approach and will compare the 6 Cf. 1 Lawrence Collins et al., Dicey And Morris On The Conflict Of Laws 169 (1 1th ed., Trevor C.
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