Breaking the Ancestral Silence: Recognition of Citizenship by Descent Despite the Great Brazilian Naturalization

This case note recounts and critically analyzes a judgment with which the Italian Corte di Cassazione has pronounced itself on the acquisition of Italian citizenship jure sanguinis by descendants of Italian ancestors who had allegedly renounced their citizenship upon tacit acceptance of mass naturalization in Brazil. The case note argues that the judgment has effectively resorted to the preclusion of inferences from silence to protect the fundamental status of citizenship from loss. Nonetheless, it claims that the relationship between national rules on modes of acquisition of citizenship and EU citizenship should have been better framed.


Abstract of the Decision
Every individual has a permanent constitutional right to citizenship, which cannot be lost by tacit renunciation.The alleged acceptance of another citizenship, inferred from failure to oppose mass naturalization in a foreign country, does not constitute a tacit renunciation of Italian citizenship.
Therefore, Italian migrants who did not oppose the 1889 Brazilian naturalization cannot, for this sole reason, be considered to have tacitly renounced their Italian citizenship.Neither can those who accepted, without prior permission of the Italian government, employment not requiring allegiance duties towards the foreign State.In any case, it is not for the descendants who want to claim Italian citizenship by descent (jure sanguinis) to prove that their ancestors did not renounce their Italian citizenship.
Key Passages from the Ruling (Paragraph 11) [The principle of effectiveness provides that] it is for each State to determine the conditions that a person has to fulfil to be considered its own citizen […] subject to the limit that there is a genuine link between that State and the person concerned.It is for the national legislature to determine this link, which represents a limit to the States' power to confer citizenship to those who do not show genuine social ties […] The principle [of effectiveness] implies that there is a concrete link between the State and the individual expressed by factors that go beyond the mere conferral of the citizenship status.Nevertheless, what matters is the scope of the relevant national legislation and links based on blood are not fictitious.The principle of effectiveness is normally invoked […] to impede arbitrary withdrawal of citizenship where there are genuine links between the individual and the State […] or to mitigate the effects of a national legislation whose effects lead to loss of citizenship.
(Paragraph 13) It is uncontroversial that loss of citizenship can exclusively depend on national legislation according to its provisions applicable pro tempore and can never happen due to decisions of another legal order.
(Paragraph 16) Silence does not mean consent; only the law can give silence the meaning of consent under given conditions […], where the law must be intended as that applicable at the time.Neither the Civil Code of 1865 nor the Law of 1912 on nationality provided those conditions.
(Paragraph 24) Only an efficient and proactive conduct could have been considered an implicit manifestation of the will "to obtain [another] citizenship" within the meaning that this expression had in the repealed Civil

Code. […] According to a certain interpretation […] a voluntary renunciation can be inferred by facta concludentia […]
A similar argument, though, also in light of the irrelevance of silence as a manifestation of will, cannot reject a crucial objection: that citizenship belongs to the sphere of fundamental rights to which presumptions do not automatically apply as they do in the distinct sphere of patrimonial rights.
(Paragraph 28) The notion of acceptance of "employment from a foreign government" within Article 3(3) of the repealed Civil Code should be intended as including only governmental jobs strictly construed.

Summary of the Case
Factual Background Two descendants of an Italian citizen, A.M.A., who migrated to Brazil at the end of the 19th century, brought proceedings before the competent Italian court (Tribunale di Roma) to obtain formal recognition of their Italian citizenship by ancestry, which was indeed granted on the basis of the proved line of transmission.1 Both the Ministry of the Interior (the ex-lege counterpart) and the Ministry of Foreign Affairs (intervened to support the former), represented by the State Attorney (Avvocatura dello Stato), challenged the ruling before the court of second instance (Corte d' Appello di Roma), which overturned the earlier decision thus denying recognition of citizenship to the descendants.
The Corte d' Appello di Roma based its reasoning on Article 11 of the repealed Italian Civil Code of 1865 -i.e. a provision on loss of citizenship applicable ratione temporis to the facts of the case according to which whoever "obtained" citizenship in a foreign country (Article 11(2)  pass his Italian citizenship to the son M. because he had lost it by tacit renunciation due to the effects of Decree No. 58-A, i.e. the act adopted by Brazil in 1889 to pursue the so-called "Great Naturalization".2In any case, regardless of his father's naturalization, the son M. had also lost his Italian citizenship since he had taken up employment in Brazil.
The descendants lodged an appeal against the judgment before the Italian Corte di Cassazione, claiming the wrong application of Article 11 of the repealed Civil Code and the reversal of the burden of proof.Specifically, the plaintiffs argued that Article 11 did not allow a tacit renunciation of citizenship and that the integration of their ancestor A.M.A. into the social fabric of the host State, which the lower court had interpreted as an acceptance by conduct of naturalization, could not amount to a tacit renunciation of the Italian citizenship.They also objected to the argument that the son M., being born in Brazil and having acquired Brazilian citizenship jure soli, could have renounced his birthright citizenship to retain Italian nationality.Article 11 of the repealed Civil Code could not even apply ratione temporis to the son M. because, when he reached the legal age set to validly renounce his Brazilian citizenship, Law No. 555/1912, replacing the older Civil Code of 1865 and allowing dual citizenship, entered into force.
Given the importance, defined as "epochal", of the legal issues raised, the dispute was referred to the Sezioni Unite of the Corte di Cassazione, which with judgment no 25317/2022 quashed the earlier decision reinstating proceedings before the lower court.

The Judgment
With the abovementioned judgment, the Corte di Cassazione ruled in favor of the descendants, accepting their pleas.Not only did it address the most technical legal issues raised by the applicants, but it also offered a broader theoretical and historical account of citizenship, the conceptual underpinnings of which were remarkably discussed.
As acknowledged at the beginning of the judgment, the effects of the "Great Naturalization" on Italian citizenship and its transmission jure sanguinis involve a large number of individuals still today.Besides this undoubtedly practical relevance, though, the issue has a constitutional centrality as it pertains to a fundamental status of individuals, which determines their legal capacity and agency as well as their enjoyment of political and civil rights.For this reason, the Court often recounted the principles that, beyond the domestic legal order, protect this fundamental status.
The Court's reasoning starts off with the principle of effectiveness, which the Corte d' Appello di Roma invoked to deny the recognition of Italian citizenship to the descendants.As explained in a central passage, the principle of effectiveness has been developed in the context of international law to limit States' discretion in laying down the conditions for the acquisition of citizenship by requiring the existence of a genuine link between the individual concerned and the conferring State.Provided that it is for each State to determine which elements indicate the existence of such a genuine link, the preference accorded to jus sanguinis as an acquisition mode of citizenship fully complies with the rationale of the principle of effectiveness: ancestral lineage is definitely not a fictitious "connecting" factor.
Against this background and contrary to the earlier decision challenged, the judgment argues that the principle of effectiveness cannot instrumentally apply to deprive individuals of their status as citizens.Recalling the case law of the Court of Justice of the European Union ("cjeu") and specifically two cases -Rottmann and Tjebbes -concerning the loss of EU citizenship,3 the Corte di Cassazione seems to suggest that the principle of effectiveness operates to protect individuals from loss of citizenship rather than as an enabler of such a loss.In other words, the principle of effectiveness, as understood and applied in the context of EU law, prevents Member States from stripping individuals of their citizenship when there is a genuine link with the State in question.
In any case, even if the principle of effectiveness is invoked to justify the loss of the original citizenship by tacit renunciation -as the lower court did with regard to the Italian migrants involved in the Brazilian mass naturalizationone has to consider that a generally imposed naturalization does not always factually lead to the concrete establishment of a genuine link with the host State.Both historical and legal considerations impede such an interpretation.
At this point, the Corte di Cassazione gives an analytical account of the historical context in which the "Great Brazilian Naturalization" took place and retraces the legal genealogy of Italian citizenship to better frame its reasoning.
First of all, the Corte di Cassazione dismisses the narrative according to which the "Great Naturalization" had been an operation whose effects were instantly exerted; on the contrary, it had been a process which was finalized later on through the adoption of further acts.More importantly, it required the proactive conduct of the migrants who should have requested the enrolment in the electoral lists or the issue of the electoral card in order to be naturalized.The emigrants' passive conduct in this respect could not qualify as a tacit acceptance of the effects of naturalization.To this end, the fact that a migrant could have taken up employment in the foreign country or established permanently their social life and affairs did not prove their intention to voluntarily renounce the original citizenship.As indicated in a missive of the Prime Minister of that time Francesco Crispi who, like other European leaders, objected to the modalities and aims of Brazilian naturalization, those illiterate or with limited access to municipal offices could not seize the opportunity offered or incur the sanctions imposed by the naturalization decrees.
In any case, under no circumstances the mere passive attitude vis-à-vis the activation duties provided by the Brazilian decrees could be interpreted as a tacit renunciation of Italian nationality upon implicit acceptance of Brazilian citizenship.This would have run against the relevant legal provisions applicable ratione temporis.
In particular, the Italian Civil Code of 1865 and the later introduced lex specialis on citizenship Law No. 555/1912 did not envisage tacit renunciation of citizenship or, in other words, a duty upon citizens abroad to proactively oppose naturalization in order to retain Italian citizenship.The semantic connotation of the verb "to obtain", used in Article 11(2) of the repealed Civil Code to indicate loss of citizenship for those acquiring another nationality, precluded that a merely passive conduct could be relevant within the meaning of that provision.In support of this conclusion, the judgment refers to the literature of the time as well as a judgment of the then Corte di Cassazione di Napoli dating back to 1907, which stated that renunciation of citizenship could not be presumed but should be demonstrated by an unequivocal and express act.The judgment emphasizes this very passage to rebut the State Attorney's argument that any purposive behavior could qualify as a renunciation of citizenship, as long as voluntary and regardless of the form in which consent is given.
The judgment also highlights how a specific provision of Law No. 555/1912, which simply reframed the provisions of the Civil Code of 1865 while keeping their rationale unchanged, clearly precluded a presumption of tacit consent.Specifically, Article 8 thereof clarified that whoever voluntarily acquired foreign citizenship establishing their residence abroad should lose Italian citizenship.The Corte di Cassazione relies on this correlation between the voluntary acquisition of citizenship and the establishment of residence abroad as a proof that establishment of residence abroad alone cannot express the intention to relinquish the original citizenship.
In any case, it is a constitutionally oriented interpretation that precludes the loss of citizenship upon tacit renunciation and naturalisation elsewhere.Only a free and voluntary act could unequivocally express the intention to renounce In light of the reasoning exposed above, the Corte di Cassazione decided in favor of the descendants and annulled the decision of the lower court.

Critical Analysis
In an era in which the boundaries of national belonging are becoming ever more precarious, the judgment above has reaffirmed the meaningfulness of citizenship as a permanent status that cannot be tacitly lost.Two main lines of argument underpin the reasoning of the judgment: one builds on the safeguards that, beyond domestic law, protect citizenship from involuntary loss and the other focuses on the legal irrelevance of silence vis-à-vis inferences.While the first could have been further developed (not for case-specific reasons but for the sake of a better understanding of the relationship between different legal orders), the second is fully persuasive.

Missing "Genuine Links" Between National and European Citizenship
As described above, the judgment engages with the principle of effectiveness since it was a central argument of both the State Attorney's plea and the challenged decision of the Corte d' Appello di Roma.Although the Corte di Cassazione eventually refused to apply the principle to the case inasmuch as not relevant, it devoted analytical efforts to its meaning and scope of application.In this regard, the analysis discloses a common misunderstanding of Nottebohm, the decision of the International Court of Justice ("icj") that originally put forward the principle of effectiveness.4The "Nottebohm principle" is often but wrongly interpreted as requiring the existence of a genuine link between the individual and the State for the attribution of citizenship.It is within this meaning that the Corte di Cassazione refers to the principle, in accordance with its own previous case law that has often construed effectiveness as a condition for the bestowal of nationality.5 Yet, the principle of effectiveness should be understood as requiring the existence of a genuine link for the recognition of citizenship.That of recognition is a category that works on the international plane, i.e. at the level of the horizontal relationships between States.In other words, the scope of the principle of effectiveness is different than the one identified by the Corte di Cassazione.It does not limit States' prerogatives in conferring their own nationality but limits their expectations to have their (conferred) nationality recognized by other States.To some extent, it is a principle that regulates conflicts of laws in the international sphere.
In the judgment, the principle of effectiveness seems to be conflated with the principle of international law according to which States have the power to determine the conditions for the acquisition and loss of nationality,6 subject to the negative limit of a genuine connection between the person concerned and the State.Drawing on such a conceptualization, the Corte di Cassazione observes that in the context of EU law the principle of effectiveness prevents loss of citizenship, in cases where there is either a revocation decision like in Rottmann or a lapse by operation of law (ex lege) like in Tjebbes.7 The Court suggests that, under EU law, Member States are prevented from stripping individuals of their nationality when there is a genuine link with the State in question.In other words, the principle of effectiveness would protect individuals from the loss of citizenship rather than enable such a loss.This reasoning -in stark contrast with the findings of the lower court, which instrumentally invoked the same principle to justify the Italian migrants' loss of citizenship by tacit renunciation -is not however conducive to any concrete consequence.Laconically, the Corte di Cassazione holds that the principle of effectiveness does not apply to the case at stake since the relevant domestic provisions have a different scope of application.Although not patently clear, it seems that the Court is here implying that the principle of effectiveness does not apply to the facts of the main proceedings because the relevant Italian law, the Civil Code of 1865, could not allow loss of citizenship as a consequence of mass naturalization allegedly accepted by tacit consent.
The point of analyzing the principle of effectiveness without eventually applying it lies in a later passage (Paragraph 18), where the Court states that it would not be acceptable that the loss of Italian citizenship could depend on the choices made by another legal order rather than the domestic legislation.Pursuant to Italian law, only a voluntary and express renunciation can extinguish Italian citizenship, not the mere social integration of the Italian citizen in another State.
In light of the above, it appears that the Corte di Cassazione refers to EU law cases such as Rottmann and Tjebbes to corroborate, in principle, its findings on loss of citizenship without explaining whether EU law should have, in practice, any concrete relevance in the dispute.According to the State Attorney, it should not.Specifically, Article 20 of the Treaty on the Functioning of the European Union ("tfeu") and Articles 4 and 24 of the EU Charter of Fundamental Rights could not apply because the case at stake does not concern European citizenship in the first place.In any case, no issue of proportionality concretely arises being the loss of national citizenship not automatic.
The Court failed to address the points raised by the State Attorney and missed an opportunity to clarify the relationship, if any, between Italian nationality law, in particular the modes of acquisition of citizenship by birth, and EU law.
As for the relevance of EU law, it is cjeu's settled case law that the rules on acquisition and loss of nationality fall within the competence of the Member States.However, in situations covered by EU law, when applying these rules Member States must pay due regard to EU law.As recalled by Rottmann, the proviso that due regard must be had to EU law does not affect the power that Member States have under international law to determine the conditions for the acquisition and loss of nationality; it rather implies that the exercise of that power in respect of Union citizens is subject to judicial review carried out in light of EU law.8 It is not clear why the Corte di Cassazione excludes the application of EU law to the case at stake.In principle, the reasons could be two: i) either the Court considers that EU law, specifically Article 20 tfeu, is not triggered, having the claimants in the main proceedings not yet acquired Italian citizenship and thus Union citizenship; ii) or it does not consider the situation to be falling ratione materiae within the scope of EU law.The second reason seems more likely because the Court implies that the case at stake does not concern loss of citizenship due to the "neutral" effects of Brazilian naturalization.Either way, the hurdle faced by the Court was perhaps how to frame the factual scenario for the purposes of EU law, i.e. as a case regarding loss of citizenship or, rather, acquisition of citizenship.
The matter is not immediately clear because the two situations, acquisition and loss, are strictly intertwined.The dispute is indeed about recognition of citizenship acquired jure sanguinis: this means that citizenship is already bestowed at birth and simply needs to be recognized by the State whose nationality law provides for such an acquisition.Should this mode of acquisition not be recognized, the individual would incur loss of citizenship.Therefore, the State Attorney's argument that the relevance of EU law is excluded by the circumstance that the loss of the Italian citizenship (of the ancestors) is not automatic does not hold in the case at stake, where the relevant aspect is represented by the automatic acquisition of Italian citizenship by the descendants.Indeed, the decision of the competent Italian authorities vis-à-vis the descendants' petition does not stricto sensu confer but rather recognizes citizenship, having thus a declaratory value.The fact that in the context of the procedure of recognition -be it administrative or judicial such as that in the present casean EU citizen can be deprived of their Italian (and thus European) citizenship, brings the factual situation within the scope of EU law.Therefore, when assessing the conditions for recognition of citizenship, the competent authority shall have due regard to EU law.In other words, it should assess the proportionality of the consequences of loss of citizenship derived from non-recognition in light of EU law.This would entail taking into consideration, for instance, the descendants' legitimate expectations, the family's unity, or the reasonable burden such as the required proof of a negative fact, i.e. the ancestors' non-renunciation of their Italian citizenship.
In sum, the application of EU law would have allowed the Corte di Cassazione to explore the possibilities opened by Tjebbes and more recently YJ,9 but already heralded by Rottmann, in relation to the acquisition of EU citizenship.10In any case, since the petition of the descendants could result in a de facto involuntary loss of Union citizenship, the Corte di Cassazione should have avoided departing from the cjeu's established case law.

Blood Is Thicker Than…Putative Consent
The other element on which the judgment founds its main line of argument is the legal meaning of silence.Simply put, silence on matters regarding a fundamental constitutional status such as citizenship is not legally conducive to relinquishing it.Silence does not mean consent; and citizenship is too fundamental to be lost by putative renunciation.
The Corte di Cassazione reached this conclusion on the basis of multiple considerations.As for the irrelevance of silence as a manifestation of will, the Court rightly argues that it cannot be inferred from a negative fact, such as the lack of reaction to the Brazilian Decree of Naturalization, that Italian migrants accepted the effects of that Decree.Not only does the Court explain that those effects did not produce immediately and automatically, but it also recalls the reluctance, shown by some States on the international plane, to accept that a mass naturalization could have had effects on their citizens a abroad.If contextualized, the inactivity of those emigrants could be read as consequence of lack of access to information about a foreign law requiring perhaps counter-intuitive duties of activation.If silence is to produce some legal effects, this is in the sphere of contractual freedom and contract law.
Yet, citizenship is not a contract but a fundamental status that cannot be negotiated as a patrimonial right.This is the core of the Court's reasoning: the permanent and imprescriptible right to citizenship, which is ontologically different from any other right, precludes the use of inferences.Whereas in the sphere of private law silence might be legally significant, in the sphere of inalienable rights to which citizenship belongs silence cannot be drawn upon.In other words, citizenship cannot be lost because of an inference.After all, safeguarding mechanisms against loss of citizenship provided by international and EU law would not make sense if citizenship was not so fundamental to preclude inferences.In this respect, the Court recalls its own previous case law in which it established that the precondition for renunciation of citizenship could only be a voluntary and unequivocal assent duly supported by evidence.11It follows that, for the purposes of the burden of proof, it is for the party alleging loss of citizenship to prove, without resorting to inferences, the existence of a voluntary renunciation.Integration into the host society, let alone employment with no allegiance to the State, cannot unequivocally indicate the relinquishment of the migrant's original nationality.This stance is not only logical but also morally necessary unless one intends to conclude that social exclusion and

PANASCÌ
The Italian Review of International and Comparative Law 3 (2023) 157-168 Downloaded from Brill.com 12/09/2023 09:37:23PM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/citizenship.It is not possible to use presumptions to infer loss of citizenship.Therefore, the fact that an individual has integrated into the host State, for instance by taking up employment, be it public or private, is unconducive to the loss of nationality of the emigration State.In this regard, contrary to what was held by the Corte d' Appello di Roma, Article 11(3) of the repealed Civil Code on loss of citizenship upon acceptance of employment from a foreign government should be interpreted narrowly as referring to only governmental jobs strictly understood (i.e.those entailing duties of loyalty to the State).
breaking the ancestral silence The Italian Review of International and Comparative Law 3 (2023) 157-168 Downloaded from Brill.com 12/09/2023 09:37:23PM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/