Nationality (International Law)

PUBLIC INTERNATIONAL LAWNATIONALITYNATIONALITY

Md. Zakir HossainProfessor, Faculty of LawUniversity of Chittagong.

Public International Law | Nationality 1

NATIONALITY:Nationality refers to a relationship between a person and his/her nation, or in legal terms, a country i.e. a place to whom a person has (or is claimed to "owe") his/her origin, culture, familiarity, association, affiliation, fidelity, and loyalty. The nationals of a country generally possess the right of abode in the territory of the country whose nationality they hold. Nationality of an individual is the quality of being a subject of a certain state and therefore its citizens. Nationality forms a continuing state of things and not a physical fact which occurs at a particular moment.


According to Openheim:"Nationality of an individual is his/her quality of being a subject of a certain state."According to M. P Tandon:"Nationality is the character or quality arising from membership of some particular nation or state which determines the political states and allegiance of a person."According to Hyde:"Nationality is a relationship between a state and an individual which is such that the former may regard the latter as owing allegiance to itself."


Nationality is regulated by municipal laws. But in case of conflict between municipal and international laws has always been a problem due to lack of uniformity of municipals laws of the nations. So, to overcome these problems some international rule have also been recognized and others are attempted to be recognized in this respect. As for example, double nationality, statelessness etc.


WHAT IS CITIZENSHIP?

• A term denoting membership in a political community with full civil and political privilege and this membership imply, reciprocally, a duty of allegiance on the part of the member and duty of protection on the part of the state.

• This legal relationship involves rights and obligations on the part of both the individual and the state itself.


CITIZENA person having the title of citizenship. He is a member of

political community who enjoys full civil and political rights and is accorded protection inside and outside the territory of the State.

Citizenship and nationality are not always synonymous. Citizenship is applicable in determining the status of a person. On the other hand, nationality not only denotes the identity it may also refer to ownership. For example, Aircraft, Ship, Company. Nationality is wider than citizenship. All citizens are nationals of a state but all nationals may not be citizen. USA by its nationality Act of 1940 and Immigration and Naturalization of 1952 distinguishes between citizen and national. In the USA, citizens enjoy all civil and political rights but national although enjoy legal protection and many privileges, they however cannot enjoy all CP rights like citizens.


WHAT IS THE DISTINCTION BETWEEN CITIZENSHIP AND NATIONALITY

1. Citizenship follows the exercise of civil and political rights whereas nationality does not necessarily carry with it the exercise of political rights;

2. A person can be a citizen of one country and a national of another.


HOW IS THE TERM NATIONAL DISTINGUISHED FROM NATIONALITY?

• National is defined as a person who owes allegiance to and is entitled to the protection of a given state, regardless of the status under domestic law.

• Nationality is often times use synonymously with Citizenship. They are not exactly the same thing for the first has a broader meaning that the second. All persons are nationals, but not all are citizens of a state. Citizenship implies complete possession of civil and political rights in a body politics whereas the nationality does not necessarily confer these rights.


IMPORTANCE OF NATIONALITY:Strak's views:(i) Protection of rights:Protection of rights through the diplomatic channel are in consequences of nationality.(ii) Jurisdiction of state:State exercises jurisdiction over civil and criminal matters over the persons of its nationality.(iii) Practice of state during war:During war enemy is determined on the basis of nationality.(iv) Refusal to extradite:State can refuse to extradite its own nationals.(v) Responsibility of state:States shall be responsible for harmful acts committed by their nationals if they allow them to commit.


MODES OF ACQUISITION OF NATIONALITYDifferent states have different rules regarding nationality, so there are different rules in each state has for acquisition of nationality.There may be any of the following modes in different states of acquisition of nationality.1. By Birth: The first important and chief mode of acquisition of nationality is by birth. Indeed, the acquisition of nationality by another mode is exception, since the vast majority of mankind acquires nationality by birth, and does not change it afterwards.


A person may acquire nationality by birth in two ways- (a) Jus Soli or Jus loci: The place of birth serves as the basis for acquiring citizenship. A person becomes a citizen of a state where he is born irrespective of the citizenship of the parents.It is nationality according to territory or locality of birth.(b) Jus Sanguinis: Nationality may also be acquired by a person on the basis of the nationality of either parents. It is nationality according to the nationality of the parents. Blood relationship is the basis for the acquisition of citizenship. The children follow the citizenship of their parents of one of them.The principle is called jus sanguinis.


2. By Naturalization: Nationality may also be acquired by naturalization. The most important mode of acquiring nationality besides by birth is that of naturalization in the wider sense of the term. Through naturalization, an alien by birth acquires the nationality of the naturalizing state. Nationality by naturalization means that the acquisition of nationality when a person becomes citizen of a state for a specified course of time. According to the municipal law of the different states naturalization may take place through six different acts- namely, marriage, legitimation, option, acquisition of domicile, appointment as government official, grant on application.


(a) Marriage:The wife assumes her husband's nationality, if latter is the national of another state.(b) Legitimation:A legitimate child acquires the nationality of his father.(c) Option:If a person fulfills the requisite conditions prescribed by the law of any state, he may be offered nationality by that state.Purchase of Real Estate:An alien, who buys real estate in a foreign land, can get the rights of citizenship if he so desires.


(d) Domicile:If a person keeps domicile of a state s/he also gets the nationality of that state.(e) Government service:If a person gets govt. service in a state s/he acquires the nationality of that state.(f) Permission by state to apply:If law of any state permits application from persons for conferring nationality. Such person may get nationality if they prove their eligibility.


3. By Resumption: The third mode of acquiring nationality is called reintegration or resumption. Acquisition of nationality by resumption means to resume the previous nationality. Sometimes it may happen that a person loss his nationality due to several reason, so subsequently he may acquire the nationality of the previous state. Such individuals as have been natural-born subjects of a state, but have lost their original nationality through naturalization abroad or for some other cause, may recover their original nationality on fulfilling certain conditions. This is called reintegration or resumption.


4. By Subjugation: In case of conquest of a state by another state all the citizens of the defeated state become the nationals of the conquering state, the mode of acquisition is said to be acquisition of nationality by subjugation.5. By Cession: When a state or a part of a state is ceded to another state, all the nationals of the former state acquire the nationality of the state in which their territory has been so merged.6. By Option: Nationality may also be acquired by option, in case where a parent state has been partitioned into two or more states. In such a case the inhabitants have an option to acquire the nationality of any of the successor states.7. By Registration: Nationality can also be acquired by the legislative or administrative act of the state. The laws as to acquisition of nationality by registration are different in different states.


MODES OF LOSING NATIONALITYThere are five modes of losing nationality, although all five are no means recognized by all the states. These are release, deprivation, expiration, option and substitution1. Release:Some states, such as Germany, give their citizens the right to ask to be released from their nationality. Such releases, if granted, denationalizes the released individual. It is effected by submitting an application by the nationality holder. If the application is allowed s/he may lose his/her nationality.


2. Deprivation:Some states provide deprivation of nationality in certain circumstances. If a national of a state gets his/her appointment in another state without seeking prior permission of his/here state, s/he will be deprived of the nationality in that state. For example, according to the municipal law of some states, as, for instance, Bulgaria, Greece, Italy, Holland, Portugal, and Spain, the fact that a citizen enters into foreign civil or military service without permission of his/her sovereign deprives him/her of his/her nationality.


3. Expiration/Residence abroad for long period:If a person resides for a long period in abroad his nationality is lost. Some states have legislated that citizenship expires in the case of such of their subjects as have left the country and stayed abroad a certain length of time. For instance, a naturalized citizen of United States of America as a rule loses his citizenship by residing for two years in the country of his origin or for five years in any other foreign state. Or, again, the American citizenship of a woman who acquired it by marriage to an American man expires incase she is living abroad at the time when her husband dies or her marriage is dissolved, unless within one year after such an event she registers as an American citizen before the US consul.


4. Option:For example, some states, Great Britain for instance, which declare a child born of foreign parents on their territory to their natural-born subject, although s/he becomes at the same time, according to the municipal law of the home state of the parents, a subject of such state, give the right to such child to make, after coming of age, a declaration that he desires to cease to be a citizen.


5. Substitution:Loss of nationality of substitution occurs when a person loses nationality of one state and acquires nationality of another state.According to the law of many states, as, for instance, Great Britain, the nationality of their subjects is extinguished ipso facto by their naturalization abroad, be it through marriage, grant on application, or otherwise. Some states, however, do not object to their citizens acquiring another nationality besides that which already possess.6. Marriage:Women lose the citizenship of their original state if they marry aliens. In England, there is a move to retain English citizen ship for women marrying foreigners.


DISTINCTION BETWEEN NATIONALITY AND CITIZENSHIPAs it obvious that nationality is a relation of a person with the nation of which he has nationality while at the other hand citizenship is the relation of a national with the law of the state. In other words national enjoys certain legal rights while citizen enjoys absolute rights in the state. So, nationality may be the subject of international law as well as, municipal law, while at the other hand citizenship is the exclusive subject of municipal law.


DIFFERENCE BETWEEN NATIONALITY AND CITIZENSHIP(i) As to relation:Nationality is relationship between national and individual.Citizenship is relationship between the persons and state law.(ii) As to right:A person may get international rights by getting nationality of a state. The rights of citizenship are concerned with the state law.(iii) As to scope:Nationality has wider scope.Citizenship has less scope.(iv) As to law:Nationality concerns both with municipal laws and international law.Citizenship concern with municipal law only.


DISTINCTION BETWEEN DOMICILE AND CITIZENSHIPThe most unique distinction between domicile and citizenship is that domicile connotes the civil rights of a person while citizen ship is a political status of a person. In other words a person having domicile may not be called citizen of a state, because he only enjoys certain general civil rights in the consequence of his domicile. While a citizen of a state enjoys all civil as will as political rights of that state. The reason is that in case of domicile the person is merely affiliated with the state by tie of his residence in that state, but in case of citizenship the person has a political tie with the state and the state, that is to say, the state’s policy will affect his political life.


DISTINCTION BETWEEN NATIONALITY AND DOMICILE As we know that nationality is the relation of the person with the state which provides him protection and all rights annexed thereto. While at the other hand domicile is place of residence of person. In other words due to nationality a person becomes the member of that community while domicile is merely the land where he has residence.Nationality may be acquired due to domicile. For such acquisition of nationality different states have different laws.

NEW FORMS OF CITIZENSHIP1.Citizenship provided by an international organization2.Citizenship in a borderless world


ORGANIZATIONAL CITIZENSHIP• Early 1974, the Paris Summit of the Heads of States launched

a study of “the conditions under which the citizens… of the Member States could be given social rights as members of the [European] community.

• The rights of EU citizens within the EU:1. The right to move and reside freely within the territory the

territory of the member states;2. The right to vote and be a candidate at municipal elections in

the member state in which he resides, although not a citizen of the member state, under the same conditions as nationals of that state;

3. Protection by the diplomatic or consular authorities of any member state, on the same conditions as the nationals of that state;

4. The right to petition the European Parliament about any matter that comes within the Community’s fields of activity and that affects that citizen.


CITIZENSHIP IN A BORDERLESS WORLD

• With the advent of the information age, or the electronic world of ‘cyberspace’, citizen one day may not be dependent on the relationship between the individual and the state.

• Globalization will revise the degree to which nation-states are sovereign as borders become less relevant to our daily lives.


DUAL NATIONALITY• A dual national possesses the citizenship of more than

one nation• An individual may acquire dual nationality because:1. He/she was born in a nation that applies the jus soli

rule of automatic nationality by birth2. Simultaneously acquire the parents’ citizenship when

their home nation applies the jus sanguinis rule of parental nationality.

UNUSUAL BURDENS AS A RESULTS OF DUAL NATIONALITY

1. Jurisdiction; 2. Taxes;3. Military service;4. Protection when he/she is harmed in a third nation

(Nottebohm case)Public International Law | Nationality 28

Nottebohm (P), a German citizen, lived in Guatemala (D) for 34 years and applied for Liechtenstein (P) citizenship one month after the start of World War II. Nottebohm (P) was a German by birth. Nottebohm (P) lived in Guatemala (D) for 34 years, retaining his German citizenship and family and business ties with it. One month after the outbreak of World War II, Nottebohm {P) applied for citizenship with Liechtenstein {P), a neutral country. Nottebohm (P) had no ties with Liechtenstein {P) and intended to remain in Guatemala (D). Liechtenstein (P) approved the naturalization application and impliedly waived its three-year residency requirement. Nottebohm (P) briefly visited Liechtenstein (P) and, on his return to Guatemala (D), was refused admittance, being deemed a German national. Nottebohm’s (P) Liechtenstein (P) citizenship was not honored. Liechtenstein {P) brought an action before the International Court to compel Guatemala (D) to recognize Nottebohm (P) as one of its nationals. Guatemala (D) challenged the validity of Nottebohm’s (P) citizenship, the right of Liechtenstein (P) to bring the action and alleged its belief that Nottebohm (P) remained a German national.


Issue:Must a nation automatically recognize the citizenship conferred on a party by another nation?

Outcome:No. As a general rule, matters concerning citizenship are solely the concern of the granting nation. It alone will normally bear the burdens or attain the benefits from the conferral of citizenship on a party. However, the conferring state may not require other states to automatically accept its designation unless it has acted in conformity with the general aim of forging a genuine bond between it and its national. Here, no relationship exists between Liechtenstein and Nottebohm (P). There was never an intent to reside in Liechtenstein (P), no business or family connections, no acceptance of traditions and the severing of old ties, etc. The change in nationality was a mere convenience/subterfuge mandated by the war. Under such circumstances, Guatemala (D) was not forced to recognize it. Dismissed.


Rule:while nationality conferred on a party is normally only the concern of that nation, such nationality may be disregarded by other states where it is clear that it was a mere device/subterfuge.

Analysis:A state putting forth a claim must establish a locus standi for that purpose. This is almost exclusively a showing of nationality of the claimant The real claimant must have continuously and without interruption from the time of the injury to the making of an award been a national of the state making the claim and must not have been a national of the state against whom the claim has been filed.


STATELESSStateless Person:A person who is not considered as a national by any state under the operation of its law.•Individuals are stateless when they lack the nationality of any state.•Loss of one’s original citizenship-typically conferred by birth or parentage, without obtaining a new citizenship-renders the individual stateless.•The individuals cannot claim the bond of citizenship with any state to protect them.•There is no state to come to aid of an individual who is in need of diplomatic representation. •Brazil follows Jus Soli. A person born in the family of Brazilian citizen parents staying in France will not acquire any nationality. Because Brazil follows Jus Soli and France Follows Jus Sanguinis. On the other hand, a person born in the family of French citizen parents staying in Brazil will acquire double nationality.


Nationality (International Law)

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