NATIONALITY

Definition and meaning

In law, nationality refers to the membership of a nation or a sovereign state in addition to the
political rights and other privileges accompanied with it. E.g. American Indians were referred
to as non-citizen nationals before the Native American Citizenship of 1924 was passed. Often
confused with citizenship, nationality, is a different concept. Individual persons, corporations,
ships and aircrafts, all have a nationality, but for legal purposes only.
The UNs Universal Declaration of Human Rights (1948) stated that nationality is an
inalienable right of every human being and no one shall be deprived of his/her citizenship. It
is nationality which brings all the individuals under the purview of international laws.

1. Starke: Nationality may be defined"...... as the legal status of membership of the

collectively of individuals whose acts, decisions and policy are vouchsafed through the
legal concept of the State representing those individuals

2. Fenwick defines the term "Nationality in the following words: "Nationality may be
defined as the bond which unites a person to a given State, which constitutes his
membership in the particular State, which gives him a claim to the protectory of that State
and which subjects him to the obligation created by the laws of that State.

3. In the famous case of Re Lynch the British Mexican Claims Commission

defined the term 'Nationality in the following words: "A man's nationality forms a
continuing state of things and not a physical fact which occurs at a particular moment. A
man's nationality is a continuing legal relationship between the sovereign State on the one
hand and the citizen on the other. The fundamental basis of a man's nationality is
membership of an independent political community. This legal relationship involves
rights and corresponding duties upon both on the part of the citizens no less than on the
part of the State"

4. In U.S. v. Wong Kum Ark, Justice Gray held that the State may determine as to
what type or class of people shall be entitled of citizenship. It is for the internal law of
each State to determine as to who is, and who is not its national. This is, however, subject
to particular international obligations. Although, nationality is determined by the internal
law of a State, it cannot claim that its determination must be acceptable to other States
unless and until its determination is in conformity with the rules of international law.

5. In Nottebohm case the World Court observed: A State cannot claim that the rules
(relating to acquisition of nationality) which it has thus laid down are entitled to
recognition by another State unless it has acted in conformity with this general aim of
making the legal bond of nationality accord with the Individual's genuine connection with
the State which assumes the defence of its citizens by means of protection as against other
States.
Development of the Law of Nationality The rules of nationality are determined by State
law. But due to the lack of uniformity in State laws in regard to the nationality, many
difficulties were experienced. Consequently. difficult problems of Statelessness, double
nationality, etc. arose. In Hague Conference of 1930, endeavour was made to end the
conflicts arising out of divergent State laws in respect of nationality. Consequently, a
convention on the conflict of Nationality Law was signed and adopted. In this connection, an
attempt was made to resolve the problems relating to nationality and Statelessness. Besides
this. Convention of the Nationality of Married Women was adopted in 1957. Last but not the
least, Convention on the Reduction of Statelessness was adopted in 1961.
International Importance of Nationality. Nationality is often determined by State laws.
"Nationality is the principal link between an individual and International Law.
As pointed out by Starke," the laws relating to nationality have following importance under
International law:
1. The protection of rights of diplomatic agents are the consequence of nationality.
2. If a State does not prevent offences of its nationals or allows them to commit such
harmful acts as might affect other States, then that State shall be responsible for the
acts committed by such a person.
3. Ordinarily, States do not refuse to take the persons of their nationality. By nationality
we may mean loyalty towards particular State.
4. Nationality may also mean that the national of a State may be compelled to do
military service for the State.
5. Yet another effect of nationality is that the State can refuse to extradite its own
nationals.
6. According to the practice of large number of States during war, enemy character is
determined on the basis of nationality.
7. States frequently exercise jurisdiction over criminal and other matters over the
persons of their nationality.

In a number of cases, the Permanent Court of International Justice has held that State may by
agreement take matters, such as nationality, out of domestic jurisdiction and make them of
international concern and subject to international jurisdiction.

Distinction between Nationality and Domicile

It has been pointed out earlier that the basis of nationality is the membership of a man with an
independent community. On the other hand, domicile denotes the residence of the person.
Thus there is a great difference between 'nationality' and 'domicile'. While nationality denotes
the relation of man with his nation which protects him and the person is bound to follow the
rules enacted by that State, on the other hand, domicile denotes the residence of the person.
Consequently, a person may acquire nationality through domicile. In different countries there
are different rules and processes in regard to the acquisition of nationality through domicile.

In D.P. Joshi v. State of Madhya Bharat, the Supreme Court of India explained the
meaning of domicile in the following words: "Domicile has reference to the system of law by
which a person is governed, and when we speak of domicile of country, we assume that the
same system of law prevails all over that country. But it might well happen that laws relating
to succession and marriage might not be the same all over the country and that different areas
in the State might have different laws in respect of those matters. In that case each area
having a distinct set of laws would itself be regarded as a country for the purpose of domicile.
Domicile of a person means his permanent home. Domicile of origin of a person means 'the
domicile received by him at his birth.

Basis Nationality Citizenship

Nationality is the individual Citizenship is the political

Meaning membership that shows a status, which states that the
person’s relationship with the person is recognized as a citizen
state. of the country

Concept Ethnic or racial. Legal or juristic.

The place or country where the Individual is registered as a

Represents individual has taken birth. citizen by the government of
the country.

Can it be changed? No Yes

Can it be reversed? It is innate. It can be reversed

On the other hand, the concept

Double Nationality Similarly, the nationality of a of dual citizenship is recognised
Or person can only relate to only one by numerous nation states
Dual Citizenship nation state, in which he/she took across the world which permit a
birth. person to hold citizenship of
more than one country.

A person who possesses only Citizens are those persons, who

Political rights nationality in a particular state possess full political rights in
may not possess all political that state.
rights

It is not necessary that all the It is possible that all the citizens
Relationship nationals may be the citizens of may possess the nationality of a
() that particular state. particular state.
Modes of Acquisition of Nationality
Following are the modes of acquisition

1. By Birth: A person acquires nationality of the state where he is born. It is usually

referred to as Jus Soli. It is a Latin term; its literal meaning is “right of soil”. The states
which follow the principle of jus soli, allow the individual to acquire the nationality of
that particular state on the virtue of being born on the state’s territory.

2. Naturalisation- Nationality may also be acquired by naturalisation. When a person living

in a foreign State for a long time acquires the citizenship of that State then it is said to be
state of nationality acquired through naturalisation. By this a foreign citizen becomes
eligible to acquire the nationality of any country. It usually requires the individual seeking
the same to fulfil certain requirements and perform certain protocols to be eligible for the
same. The rules and protocols for naturalization vary from country to country. The most
common element can be the requirement of a promise to obey and uphold the country’s
law and respect the constitution.

3. By Resumption-Sometimes it so happens that a person may lose his nationality because

of certain reasons. Subsequently, he may resume his nationality after fulfilling certain
conditions.

4. By Subjugation-When a State is defeated or conquered, all the citizens acquire the

nationality of the conquering State.

5. Cession-When a State has been ceded in another State, all the people of the territory
acquire nationality of the State in which their territory has been merged.

In addition to the above-mentioned modes, there may be some other modes whereby a
person may acquire nationality.
6. By descent from a State’s National -This is known as the principle of Jus Sanguinis. It
is derived from a Latin term. It literally translates to “Right of Blood”. It means that the
citizenship of the parent is the pre-determinant of the child’s citizenship. The countries
which follow this principle provide citizenship on the basis of birth provided that the
individual’s parents were legally settled citizens of the respective country. This ensures
that the citizenship passes from the parent to the child.

7. Option: The nationals of a state which is partitioned into two or more states have an
option to become nationals of any of the successor states. This principle is also applicable
when the territories are exchanged.

8. Registration: Nationality can also be acquired through registration. The process may
differ from one state to other in accordance to laws of the respective States.

Nottebohm's case- Born in 1881 in Germany Friedrich Nottebohm went to Guatemala in

1905. He had German nationality by birth and remained a German national until 1939. Since
1905 he resided in Guatemala where he carried on the business of banking, commerce and
plantation. But he continued his business relations with Germany and went to Germany
several times. After 1931 he visited his brother who resided in Liechtenstein. In 1938 he left
Guatemala. After reaching Liechtenstein, he through his attorney, submitted an application
for naturalisation as a citizen of Liechtenstein, and the same was granted on 13 October 1939.
Thereafter he conducted himself exclusively as a national of Liechtenstein, particularly with
regard to Guatemala. He returned to Guatemala at the beginning of 1940 on Liechtenstein
passport and in Guatemala his change of nationality was enrolled on the register of Aliens. As
a result of war measures his property was seized in 1943 and he was arrested by Guatemalan
authorities and handed over to the armed forces of the U.S. in Guatemala. Later on, he was
deported to the U.S. and interned there for more than two years. In 1944, as many as 57 legal
proceedings were started against him in Guatemala obviously to confiscate all his properties.
After his release from internment in the U.S. he wanted to go to Guatemala to oppose cases
filed against him but he was refused readmission to Guatemala. In 1946 he went to
Liechtenstein and lived there thereafter. In 1949 his properties in Guatemala were confiscated
under the law of Guatemala.

After having been domiciled in Liechtenstein for five years, Liechtenstein espousing his case,
filed a case in the International Court of Justice on 11 December 1951. By its judgment dated
18 November 1953, the court rejected the preliminary objection of Guatemala against the
jurisdiction of the Court. In the second phase the court considered only the admissibility of
claims (of reparation summing into ten millions Swiss Frances) and held by a majority of
eleven to three that Liechtenstein was not entitled to extend its protection vis-a-vis
Guatemala. Thus the International Court of Justice rejected the claims made by Liechtenstein
espousing the case of Nottebohm to be inadmissible. Further, the World Court had to decide
whether by the fact of grant of nationality by the naturalisation to Nottebohm by
Liechtenstein would directly entail an obligation on the part of Guatemala to recognise
Liechtenstein’s right to exercise its protection over Nottebohm. Propounding the principle of
effective nationality, the World Court observed:

"It must ascertain whether the factual connection between Nottebohm and Leichtenstein in
the period preceding, contemporaneous with and following his naturalisation appears to be
sufficiently close, so preponderant in relation to any connection which may have existed
between him and any other State, that it is possible to regard the nationality conferred upon
him as real and effective as the exact juridical expression of a social fact, of a connection
which existed previously or came into existence thereafter."

The Court noted that Guatemala was the main centre of Nottebohm's business and he
remained there for as many as 34 years. Even after his removal in 1943 as a result of war
measures Guatemala remained the main seat of his business. As compared to this, in
connection with Liechtenstein were extremely tenors. At the time of his application for
naturalisation, he had neither any settled abode nor had resided in that country for a long
time. Nor did he intend to transfer his business activities to Liechtenstein. Applying the above
principle the Court held that Nottebohm did not enjoy the nationality of Liechtenstein. The
Court said that it was the bond of nationality between a State and an individual which alone
conferred upon the State the right to put forward claim on his behalf on the international
plane, the grant of nationality was entitled to recognition by other States only if it represented
a genuine connection between the individual and the State granting its nationality.
Nottebohm's nationality was not based on any genuine prior link with Liechtenstein and the
object of his naturalization was to enable him to acquire the status of a neutral national in
time of war. On the basis of these reasons, the Court held that Liechtenstein was not entitled
to espouse his case and put forward an international claim on his behalf against Guatemala.

Loss Of Nationality

(1) By Release: Some States, such as Germany., Law provides that the citizens may lose the
nationality by release. In the loss of nationality by release it is necessary to submit an
application for the same. If the Application is accepted, the person concerned is released
from the nationality of the State concerned.

(2) By Deprivation: A national of a state may be deprived of a nationality in few cases. The
cases are as follows if a citizen enters into foreign civil or military service without
permission, he will be deprived of his nationality. If the national of that state without
seeking prior permission of the government obtains employment in another state, he will
be deprived of his nationality.

(3) Long Residence Abroad -Yet another mode of the loss of nationality is the long
residence abroad. State laws of many States contain provisions in this connection that if a
person resides for a long period abroad, his nationality ends.

(4) By Renunciation-A person may also renounce his nationality. The need for renunciation
arises when a person acquires nationality of more than one State. In such a condition, he
has to make choice as to of which country he will remain the national. Consequently, he
has to renounce the nationality, of one State.

(5) Substitution-Some States provide for the substitution of nationality. According to this
principle, a person may get nationality of a State in place of the nationality of another
State. This is called nationality by substitution whereby he loses the nationality of one
State and acquires the nationality of another State.