AN ANALYSIS OF THE BULGARIAN NATIONALITY LAW
The conclusion of the naturalization treaty between the United States and Bulgaria on November 23, 1923,1 calls for an analysis of the pravo za bulgarsko podanstvo, the Bulgarian Nationality Law.2 Very little, if any, has been written in English of Bulgarian laws. Hence the present paper has the modest object of providing some useful references in this respect.
The Origin of Bulgarian Nationality
It seems necessary at the outset of this paper to say a word or two of the origin of Bulgarian nationality.3 About the fourth century A. D., Slavonic tribes settled in the Balkan peninsula and became loyal subjects of the Eastern Roman Empire. Three centuries later, the Bulgarians, a Turanian tribe akin to the Finns, crossed the Danube and subjugated the Slavonic population. The eastern Roman Emperor had been compelled to cede to the invaders the province of Moesia which had been constituted into a new State by the name of Bulgaria. Then the majority of the Slavs in the Balkan peninsula became Bulgarian subjects. The invaders had been a small number and had formed the ruling class within the new State.
The Slav subjects of the new Bulgarian State had, in their majority, been already converted to Christianity. For political reasons, i.e., to bring about a fusion and unity of the Bulgarians with the Slavs, King Boris I adopted (865) Christianity and also ordained that all of his non-Christian subjects should be christened.4 Then his Bulgarian subjects raised a rebellion in defense of their paganish religion. The King, however, suppressed that rebellion and ruthlessly exterminated the rebels and their families to the last man.5 It seems that very little, if any, has been left: of the original Bulgarian stock. Thus like the Franks in Gaul, the Bulgarians gave their name and a political organization to a more civilized race which they had conquered and subjugated, but adopted the language and customs of the latter. Not a trace of the Ugrian or Finnish element could be found in the Bulgarian speech except perhaps the word "bolyar" ("nobleman").6
At the end of the fourteenth century the Bulgarian State was extinguished by the military Turkish forces and the Bulgarians became rayah (serfs) of His Imperial Majesty the Sultan. And for well nigh five centuries the very name of " Bulgarians" was covered with oblivion. The Turkish census gave out all the Christian population within the Empire as roum-milets, Romans.
When, in July 1878, the Daily News of London published the story about the "Bulgarian Atrocities," narrated by the American journalist MacGahan,7 the whole world was stirred by the horrors alleged to have been perpetrated by the Turks in Bulgaria. Gladstone started a thunderstorm in the House of Commons, and, contrary to the traditional British policy of preserving the "integrity of the Ottoman Empire," demanded that the Turks be cleared "bag and baggage from the province they have desolated and profaned."8 The Sultan hurriedly octroid a Constitution, in which it was declared that "All subjects of the Empire are called Ottomans, without distinction whatever faith they profess."9 But it was too late. On April 28, 1877, Alexander II, by the Grace of God Emperor and Autocrat of all the Russians, declared war on Turkey in order to liberate the Christian brothers.10 The result was the Treaty of San Stefano, signed on March 3, 1878, and the Treaty of Berlin, of July 13, 1878.11 A part of the "desolated and profaned" province was recognized as a "tributary principality under the suzerainty of His Imperial Majesty the Sultan" with "a Christian government and a national militia." Thus, out of the famous " Bulgarian atrocities," came into being the modern Bulgarian State.
Because of the spurious provisions of the Treaty of Berlin, of 1878, authors on international law,12 as well as foreign powers,13 considered the territory of Bulgaria an integral part of the Ottoman Empire, the Bulgarians still subjects of the Turkish Sultan, and the Bulgarian Prince (the head of a European Christian nation) equal to the Khedive of Egypt or the Bey of Tunis. This situation was brought to a close by a rough and illegal proclamation of Prince Ferdinand on October 5, 1908,14 when, without any previous warning to the Great Powers and without any consultation with the Bulgarian Parliament, he proclaimed the Principality of Bulgaria an independent Kingdom ("tsarstvo") and assumed the title "Tsar of the Bulgarians." Several months later the Great Powers recognized the fait accompli,15 and, on July 11, 1911, the Grand Assembly amended the Constitution and sanctioned the change made illegally by an executive act.
1 U. S. Treaty Series, No. 684; Suppl. American Journal of International Law, Vol. 18, p. 117.
2 The word "pravo" in Bulgarian, as well as in almost all Slavonic languages, means "law" in abstract sense.
3 Says Professor Hayes of Columbia University: "The Bulgars or the Bulgarians speak a Slavic language somewhat similar to that of the Serbs. Slavic blood—if there be such a thing—flows in their veins too, but with many admixtures. About the fourth century A.D., Slavic farmers had settled among the ancient Thracian inhabitants of the land. Then had come the fierce Bulgars, Asiatic tribesmen like the Turks, conquering the Slavs, then adopting Slavic customs and language. Finally had come the Turks. The mixture of these many elements produced the Bulgarian 'nation,' which now inhabit the Kingdom of Bulgaria, Eastern Rumelia, parts of the Dobrudja, and most of the interior of Macedonia." Hayes, Political and Social History of Modern Europe (1924 ed.), Vol. II, p. 495. Yet says the same professor: "Purity of race, if it exists at all, exists nowadays only among uncivilized tribesmen." Hayes, Essays on Nationalism, p. 8.
4 Cf., Sharenkoff, "Bulgaria's Conversion to Christianity," in Pages from Bulgaria's Life, Bulgarian Student Association, New York City, 1927, pp. 32-38.
5 Pope Nicholas V, "Resposa ad Consulta Bulgarorum," ed. Hardouin. Acta Consiliarum, V, pp. 354-386. Cf., also V. Sharenkoff, Manichceism in Bulgaria, New York, 1927.
6 Bernard, H., The Shade of the Balkans, London, 1904, pp. 326-328.
7 Cf., MacGahan, Turkish Atrocities in Bulgaria, London, 1878.
8 Gladstone, Bulgarian Horrors and the Question of the East, p. 62.
9 Suppl. American Journal of International Law, Vol. 2 (1908) p. 367.
10 Hertslet, The Map of Europe by Treaty, Vol. IV, p. 2598. The date of the declaration of war upon Turkey by Czar Alexander II is important, since the Bulgarian Nationality Law of 1883 was retrospectively given force from that date.
11 Suppl. American Journal of International Law, 2 (1008), pp. 387-424.
12 Sariivanoff, La Bulgarie un Etat mi-souverain, p. 6.
11 R. Calary de Lamaziere, Les capitulations en Bulgarie, p. 163.
14 U. S. Foreign Relations, 1908, p. 57.
15 U. S. Foreign Relations, 1909, pp. 45-47; cf., G. Scelle, "Bulgarian Independence," in American Journal of International Law, Vol. s (1911), pp. 175, 395-397.
Bulgaria's Nationality Laws
Originally, the fundamental principles of the Bulgarian law on nationality16 were embodied in Chapter XII of the Constitution, drafted by the Russian High Commissioner and adopted with considerable changes by the Constituent Assembly at Tirnovo, on April 16, 1879.17 The Sobranie (National Assembly) passed, as soon as it was convened in December, 1880, a Law on Bulgarian Nationality (zakon za bulgarsko podanstvo). The latter law was substituted by the Decree-Law of 1883,18 the Constitution having previously been suspended.19 After the reestablishment of the Constitution in September, 1883, there was confusion as to which law was in force, the Law of 1880 or the Decree-Law of 1883. Finally, the Court of Cassation, sitting as a full court, held that the Decree-Law of 1883 was null and void as it was unconstitutional.20
The present nationality laws of Bulgaria are embodied in the Constitution of 1879 and in the Nationality Law of 1904, with their amendments up to date. For the interpretation of these laws and to supply their inadequacies one has to look to the parliamentary discussions,21 administrative regulations,22 and, especially, to the decisions of the Supreme Court of Cassation, which has, under Art. 47 of the Law Concerning the Organization of the Courts, to make interpretations of these laws binding for the courts below.23
Chapter XII of the Bulgarian Constitution of 1879 bears the heading, "The Citizens of the Bulgarian Kingdom." Art. 54 provides: "All persons born in Bulgaria and who have not adopted any other nationality, as well as those who are born in foreign countries of parents who are Bulgarian subjects, are considered subjects of the Bulgarian Kingdom." In the Bulgarian Constitution and Laws, however, the words "subject" (podanik) and "citizen" (grazhdanin) are used interchangeably as synonyms and as conveying the idea of membership of the Bulgarian State, and nothing else.
16 The Bulgarian word "podanik" may literally be rendered into English as "subject" but "podanstvo" has usually been translated as "nationality," while it really means "subjection" or "citizenship," The word "nationality," Bulgarized "natsionalnost," or the Bulgarian equivalent "narodnost," has, in Bulgarian, entirely another meaning; it has been used to denote what in English is called "race." Thus, says Professor Hayes: "The jurists . . . have done their best to corrupt the new word "nation"; they have utilized "nationality" to indicate "citizenship." Hayes, Essays on Nationalism, p. 4.
17 T. Geshkoff, "The Constitution of Bulgaria," in Pages from Bulgaria's Life, New York, 1927, pp. 49-57.
18 British Foreign Office, Miscellaneous No. 3 (1893) and No. 3 (1895); also in Martens Nouveau Recueil General de Traites, 2 serie. Vol. 19, p. 550.
19 British State Papers, Vol. 72, pp. 1248-1249 and 1261; British Parliamentary Papers, 1881, Vol. XCVIII, c. 2992.
20 Court of Cassation Decision, September 24, 1886, being the only decision (advisory opinion) whereby a Bulgarian court held a law unconstitutional. In a later case. No. 140, September 24, 1912, the Court of Cassation, First Civil Division, held that it had no power to consider the constitutionality of the laws.
21 Dnevnitsi (Journals of the National Assembly), 1879, Dnevnik XV, March 24, pp. 143-147; Nov. 21, 1880, pp. 112-127; 1903, P. 914.
22 Circulars of the Ministry of Interior, Jan. 2, 1881, No. 4; Jan. 16, 1885, No. 2778; April 9, 1888, No. 3923.
23 Cf., International Conciliation, 1925, No. 214, p. 364.
Nationality by Birth (Articles 5-8)
Bulgarian subjects or citizens by birth are:
(1) Those born in Bulgaria or in any foreign country to a Bulgarian ;
(2) Those born in Bulgaria of unknown parents or parents of unknown nationality. An illegitimate child follows the nationality of the parent whose nationality be first made known by recognition or by judgment;
(3) Those born in Bulgaria to alien parents, presumably excluding children born in Bulgaria to foreign diplomats accredited to the Bulgarian Government.
With regard to this last class of persons, the law provides that they are considered Bulgarian subjects if at the time of their majority they are domiciled in Bulgaria. Yet practically every person born in Bulgaria is held to be a Bulgarian subject or citizen. So that both the jus soli, the law of the place of birth, and the jus sanguinis, the law of blood, form parts of the Bulgarian law.
Naturalization (Articles 9-14)
Naturalization is conferred in Bulgaria by a king's decree (tsarski ukase) on the representation of the Minister of Justice.24 The courts, however, have jurisdiction over cases of contested nationality.
Application either for acquisition or repudiation of Bulgarian nationality must be made by the persons interested or by their attorneys in fact to the mirovi sudia (justice of the peace) wherein they are domiciled or to the Bulgarian diplomatic representatives or consuls, if they reside abroad.
A foreigner who desires to acquire Bulgarian nationality by naturalization must, in lieu of a declaration of intention, file an application with the Ministry of Justice for a permit to establish his permanent domicile within the Kingdom. Bulgarian nationality is conferred upon an alien who is of Bulgarian extraction, or is married to a Bulgarian woman, or has rendered some meritorious services to the country, one year after granting him a permit of permanent domicile. Bulgarian nationality, however, is usually granted to an alien after three years following the grant of permanent domicile.25
Bulgarian nationality may likewise be granted to an alien who has not obtained a permit of permanent domicile but who can prove ten years continuous residence within the country.
A naturalized alien enjoys all civil and political rights of a Bulgarian subject or citizen. Nevertheless he is not eligible to membership in the National Assembly until fifteen years after he obtains his final naturalization. This period is shortened to ten years for those aliens, specified in Art. 9 (3) of the Nationality Law, who have obtained or shall obtain their naturalization by virtue of rendering certain meritorious service to the country. Moreover, persons who recover Bulgarian nationality after having lost it immediately acquire all civil and political rights, including eligibility to any elective public office.
24 Before 1911, Bulgarian nationality was conferred upon aliens only by legislative acts, in accordance with Art. 55 of the Constitution. The amendment to this Article of July II, 1911. gave the king's decree a final force.
25 Mestozhitelstvo or "domicile" has been denned by the Law of Persons (Zakon za litsata), of 1907. as "the place wherein a person has his (her) main business establishment or interests"; mestoprebivanie or "residence," as "the place wherein a person usually lives," (Art. 1). "The woman, if she is not legally divorced, has the domicile of her husband; If her husband dies, she has the same domicile until after she duly acquires another domicile." (Art. 3).
Nationality by Marriage (Articles 15-16)
Every alien woman who marries a Bulgarian becomes ipso facto a Bulgarian.26 A Bulgarian woman who marries an alien loses her Bulgarian nationality unless, according to the law of the country of her husband, she does not acquire his nationality by virtue of the marriage alone.27 After the termination of the marital relations, she may resume Bulgarian nationality by filing a special application with the Ministry of Justice and by returning to reside within the country. Her minor children may, provided the marital relation terminates with the death of the husband, acquire Bulgarian nationality by the same king's decree by which their mother resumes Bulgarian nationality or by a subsequent decree.
26 An American woman who marries a Bulgarian becomes eo instanti a Bulgarian (Art. 15 of the Bulgarian Nationality Law), although she may retain her American nationality and thus become a person with double nationality. (Sec. 3, Act of Congress of Sept. 22, 1922, Stat. 42, p. 1021). A Bulgarian woman who marries an American retains her Bulgarian Rationality until after she be duly naturalized as an American. (Art. 16 of the Bulgarian Law and Sec. 2 of the aforementioned American Law.)
27 Cf., G. Calbairac, La nationality de la femme mariee, Recueil Sirey, Paris. 1926.
Election of Nationality (Articles 5(3), 6, 7, 11, 33 and 34)
By reason of concurrent operation of the jus soli and the jus sanguinis, there are persons born with dual nationality. All persons born in Bulgaria of aliens except children of accredited foreign diplomatic representatives, are said to possess dual nationality. They may, during the year following their majority, claim the nationality of their fathers, provided they produce, first, a certificate of the government of the country to which they claim to belong supporting such a claim; and, second, another certificate, if necessary, of the same government showing that they have responded to the military call or that they are not subject to military service.
There is no provision in the laws concerning those born to Bulgarians in foreign countries and who are considered Bulgarians jure sanguinis. It seems that they also must formally repudiate Bulgarian nationality should they desire to be exempted from military service or regular labor service. It is the same with minor children of naturalized Bulgarians or of Bulgarians who reacquire Bulgarian nationality after having lost it, but not later than a year following their majority.
Expatriation (Articles 17-24)
Under the Bulgarian law the right of expatriation or change of nationality is conditional. No Bulgarian subject or citizen can change his nationality when Bulgaria is at war;28 nor can a Bulgarian, without the permission of the Bulgarian Government, acquire foreign nationality while he or she is resident within Bulgarian territory; nor is a Bulgarian naturalized abroad divested of Bulgarian nationality, has he not served his period of trudova povinost (compulsory labor service). Thus the zakon za trudovata povinost (Labor Service Law) of 1920 provides:29
Art. 1. All Bulgarian citizens of both sexes, viz., men who have attained the age of twenty years and girls who have attained the age of sixteen years, shall be liable to compulsory labor service, that is, to compulsory public service.
Art. 5. No Bulgarian can change his nationality or settle in a foreign country until he has completed his compulsory labor service.
Art. 24. Those persons, who have acquired foreign nationality having previously served their compulsory labor, shall be subject to punishment with not less than one year of imprisonment.
Art. 29. Offenses under the present law shall be cognizant to the proper district courts as the courts of first instant. Cases arising under the operation of the present law are matters of urgency and shall be disposed of in the course of a month.
Moreover, every Bulgarian naturalized abroad is responsible for offenses committed before the date of his naturalization. It is not even necessary to mention that naturalization abroad must be obtained by a Bulgarian subject or citizen at his own voluntary application.
28 The same provides Sec. 3 of the American Expatriation Act of March 2, 1907.
29 For an English translation of the Bulgarian Labor Service Law of 1920 and its amendments see International Labour Office, Legislative Series, 1922, Bulgaria, I, p. 34; cf ., also Max Lazard. "Compulsory Labor Service in Bulgaria," I. L. O., Studies and Reports, Series II (Economic Conditions) No. 12, Geneva, 1922.
The Law Concerning the Organization of the Bulgarian Armed Forces of 1904, which was abrogated by the Labor Service Law of 1920 and which the Bulgarian ultra-patriots desire to reinstate, provides: "No grazhdanin (citizen) may obtain foreign podanstvo (nationality) before completing his duty of military service (46 years of age). Should one obtain foreign nationality, before complying with the above-mentioned conditions and without the permission of the Bulgarian Government, he shall be considered a deserter and shall be subject to punishment under Art. 158 of the Military Penal Law." (Art. 7).
So that before 1920 a Bulgarian, subject to military service, could not, without the permission of the Bulgarian Government, change his nationality before completing 46 years of age.
Treaties
Of course the naturalization treaty between the United States and Bulgaria divest of Bulgarian nationality those Bulgarians who have been or shall be naturalized in the United States. They are not and shall not be subject to punishment for the original act of emigration. Yet they are and shall be subject to punishment in case they have or shall obtain final naturalization after their military or labor service has accrued, i.e., after they have completed the age of twenty years.30
The Treaty of Neuilly of November 27, 1919, between Bulgaria and the Allied and Associated Powers,31 likewise contains provisions concerning nationality and naturalization. It would not be amiss to quote Art. 158 of that treaty in entirety. It provides:
"Bulgaria undertakes to recognize any new nationality which has been and may be acquired by her nationals under the laws of the Allied and Associated Powers and in accordance with the decisions of the competent authorities of the Powers pursuant to naturalization laws or under treaty stipulations, and to regard such persons as having, in consequence of the acquisition of such new nationality, in all respects severed their allegiance to their country of origin."
Having not ratified the Treaty of Neuilly, the United States has, of course, nothing to do with its stipulations.32 Its provisional regarding nationality and naturalization is quoted above simply in passing, because it is a part of the Bulgarian law as far as the other Allied and Associated Powers are concerned.
It is a curious fact, however, that certain Powers have made so extensive an interpretation of Art. 158 of the Treaty of Neuilly that they have claimed certain Bulgarian nationals, even residents in Bulgaria, to have renounced or repudiated their Bulgarian nationality by merely obtaining passports from the legations or consulates of those Powers. Of course this has been done in contravention not only to Bulgarian laws but also to laws of the very Powers that have made such claims.
Bulgaria was defeated—vae victis. Yet, under the rules of international law, the Treaty of Neuilly should be given a restrictive, and not an extensive, interpretation, that is, each and every ambiguous or uncertain stipulation should be interpreted to the benefit of Bulgaria, the grantor.33
As modern civil legislation of Bulgaria is chiefly based upon the French Code Civil, the zakon za bulgarsko podanstvo (Bulgarian Nationality Law) of 1904 is modeled after the French Nationality Law of June 26, 1889 and resembles it very closely. It may soon be modified or amended, but its fundamental principles are likely to remain untouched.
30 See Art. II of the Treaty of November 23, 1923, and Art. 24 of the Labor Service Law.
31 Suppl. Am. J. I. Law, 14 (1920) p. 185; British Treaty Series, 1920, No. 7.
32 The Treaty of Neuilly would, under the very first article of the Bulgarian Constitution, be approved by the Grand National Assembly, since that treaty diminished the territory of the Kingdom. This has not been done. It seems that that peace treaty is unconstitutional as far as it made territorial changes. Cf., J. Caleb. "Le regime constitutionel en Bulgarie," in Revue de droit international et de legislation comparee. Vol. 37 (1906), PP- 233-235; also Prof. Kiroff, Bulgarsko konstitutsiono pravo, Sofia, 1920, pp. 13-14.
33 The judgments 3 and 4 of the Permanent Court of International Justice, rendered in 1924 in a controversy between Greece and Bulgaria over the exact meaning and the scope of paragraph 4 of the annex following Article 179 of the Treaty of Neuilly, are noteworthy examples of a correct and just application of the rule of international law relative to interpretation of treaties, and that in spite of the fact that these judgments have been bitterly censured by certain learned Greek jurists (See Christo Yotis, "Le question d'ultra petita a propos d'une arbitrage entre la Grece et la Bulgarie," in Journal du droit international, Clunet, 1926, p. 879). These judgments, however, are a moral gratification to those Bulgarians who, in 1918, risked their own lives in order to stop the World War by getting Bulgaria out of it; who, in 1921, led Bulgaria in the League of Nations and the Permanent Court of International Justice in spite of the bitter opposition of the Bulgarian "intellectuals" and ultra-patriots; and who, after the military coup d'etat that occurred in Bulgaria in June, 1923, either have been massacred en masse before the eyes and even under the acclamation of the civilized world or have experienced hardship, privation, and starvation in foreign lands as political emigrants.