Option right and repudiation right are familiar things to hear in terms of determining a person’s citizenship. The issue of citizenship is a real problem for a person in a country because the rights and obligations of newborns are related to citizenship status. Therefore, a person’s citizenship status determines to which country’s legal jurisdiction his submission must be given, and in the end it is necessary to note that it is the state that ultimately provides the limits and requirements for citizenship. The following are things that need to be considered in determining citizenship status.

A. Active and Passive Stelsel 

In exercising the right to citizenship, the government of a country usually uses 2 (two) kinds of rules that bind citizenship (stelsel) in determining a person’s citizenship status:

1. Active Stelsel, where a person obtains the citizenship status by submitting a request to obtain it, or performing certain legal actions (ordinary naturalization) such as applying for citizenship
2. Passive stelsel, where a person obtains citizenship status automatically, or the person does not take any legal action (special naturalization) to obtain it. The citizenship status is a grant from the state/government pursuant to Article 1 of Law Number 3 of 1946 on Indonesian Citizens and Occupation (“Law 3/1946”), which regulates the qualifications of Indonesian Citizens.

 

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B. Option Right and Repudiation Right

The implementation of the stelsel above has led to the enactment of 2 (two) legal rights in determining a person’s citizenship status:

1. Option Right: the right of a person to choose or accept an offer of citizenship of a particular country, which applies in the application of an active system, for example a person gets the right to choose a desired citizenship if that person was born from two parents from different nations.
2. Repudation Right: the right of a person to refuse an offer of citizenship of a particular country, which applies in the application of an active system, for example a person was descended from two countries that apply citizenship status from birth which causing that person to have more than one citizenship status, so the person can refuse one citizenship by using the right of repudiation.

 

The implementation of the option and repudiation rights can be seen from the results of the Round Table Conference (Konferensi Meja Bundar, “KMB”) on December 27th, 1949, between the Netherlands and the Republic of the United States of Indonesia where the two countries had to determine who would become their respective citizens after the Republic of the United States of Indonesia is fully sovereign, free from Dutch colonial power. Then, the option right and the repudiation right were determined in the charter of the agreement on the distribution of the citizens of the conference where the option right was determined by applying the active stelsel for Indonesian residents of European descent, and the repudiation right by applying the passive stelsel for Indonesian residents of Foreign Eastern descent such as those of Chinese, Arabian and Japanese descent.

C. Principles of Citizenship

Furthermore, what needs to be considered in determining a person’s citizenship is the principle adopted by a country. The Republic of Indonesia in particular determines citizenship status based on Law of the Republic of Indonesia Number 1 of 2006 on Citizenship of the Republic of Indonesia (“Law 1/2006”), which adheres to 4 (four) principles in determining a person’s citizenship, as follows:

1. Ius sanguinis principle (law of the blood): a principle that determines a person’s citizenship based on descent instead of the country of birth.
2. Ius soli principle (law of the soil): a principle that determines a person’s citizenship based on the country of birth, which is limited to children in accordance with the provisions regulated in the applicable law.
3. The principle of single citizenship: a principle that determine a citizenship for everyone.
4. The principle of dual citizenship: a principle that determines dual citizenship for children in accordance with the provisions regulated in the applicable law.

 

Of those various principles, the two main principles of citizenship are the ius sanguinis principle and the ius soli principle. According to the ius sanguinis principle, a person is a citizen if that person is born from citizen parents. This principle is a principle that can facilitate solidarity. However, not all countries use this principle because even though a state regulates citizenship based on descent, the bond between the state and its citizens may not be strong if the citizen of that country stays for a long time in another country. 

 

On the other hand, living together in a country strengthens the solidarity relationship among the people living together in that country. The ius sanguinis principle is thus based on a person’s affinity factor to the status of parents who are related by blood. If the parents are citizens of a country, the citizenship of their children is automatically considered the same as the citizenship of the parents. in contrast to the ius soli principle, this principle causes a person born in the jurisdiction of a country to be legally considered to have the citizenship status of the country of birth. The United States of America and most countries in Europe adhere to the principle of citizenship based on the country of birth so that anyone born in these countries is automatically recognized as a citizen, including in Indonesia.

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Disclaimer: This article has been prepared for scientific reading and marketing purposes only from ADCO Law. Accordingly, all the writings contained herein do not constitute the formal legal opinion of ADCO Law. Therefore, ADCO Law should be held harmless of and/or cannot be held responsible for anything performed by entities who use this writing outside the purposes of ADCO Law.