Introduction:

Nationality is a fundamental concept in international law, serving as the legal bond between an individual and a state. It determines membership in a state, confers certain rights and protections, and imposes specific obligations. Despite its importance, the lack of uniformity in state laws regarding nationality has historically led to significant challenges, including statelessness and double nationality. This paper explores the definitions and meanings of nationality, the development and importance of nationality laws, and the distinctions between nationality, domicile, and citizenship. Key legal cases and international conventions that have shaped the understanding and regulation of nationality are also discussed.

Definition of Nationality

Nationality is a legal bond that connects an individual to a particular state, granting them membership and a claim to the state’s protection, while also subjecting them to its laws and obligations. Fenwick defines nationality as “the bond which unites a person to a given State which constitutes his membership in the particular State, giving him a claim to the protection of that State and subjecting him to the obligations created by the laws of that State.”

The British-Mexican Claims Commission in the Re Lynch case described nationality as “a continuing state of things” and “a continuing legal relationship” between a state and its citizen. Similarly, the International Court of Justice (ICJ) in the Nottebohm case (second phase) emphasized that nationality under international law is “a legal bond having as its basis a social fact of attachment, genuine connection of existence and sentiments together with the existence of reciprocal rights and duties.”

Importance of Nationality

1. Link to International Law: Nationality is the primary connection between an individual and international law. It justifies a government’s intervention to protect its nationals abroad.
2. Rights and Obligations: Nationality entails reciprocal rights and obligations between the state and its nationals.
3. Diplomatic Protection: Nationality allows a state to assert its rights to protect its nationals through diplomatic or judicial means, as highlighted in the Panevezys-Saldutiskis case.
4. State Responsibility: States are responsible for preventing their nationals from committing acts that could harm other states.
5. Loyalty and Military Service: Nationality often implies loyalty to the state and can entail obligations such as military service.
6. Non-Extradition: States may refuse to extradite their own nationals.
7. Jurisdiction: States frequently exercise jurisdiction over their nationals, even in criminal matters.
8. Enemy Character in War: During wartime, enemy character is often determined based on nationality.

Development of Nationality Laws

Due to variations in state laws, issues like statelessness and dual nationality have arisen. The Hague Conference of 1930 attempted to resolve these conflicts, leading to the Convention on the Conflict of Nationality Laws. Other significant conventions include the 1957 Convention on the Nationality of Married Women and the 1961 Convention on the Reduction of Statelessness.

Modes of Acquisition of Nationality

1. By Birth: A person acquires the nationality of the state where they are born and the nationality of their parents.
2. Naturalization: Long-term residents of a foreign state may acquire nationality through naturalization, as discussed in the Nottebohm case.
3. By Resumption: Individuals who lose their nationality can regain it under certain conditions.
4. By Subjugation: Citizens of a conquered state acquire the nationality of the conquering state.
5. Cession: Citizens of a ceded territory acquire the nationality of the state to which their territory is merged.
6. Other Modes: Examples include acquiring nationality through public service in another state.

Loss of Nationality

1. By Release: Some states allow citizens to apply for release from nationality.
2. By Deprivation: Nationals may be deprived of their nationality for reasons such as unauthorized foreign employment.
3. Long Residence Abroad: Long-term residence abroad can result in the loss of nationality.
4. By Renunciation: Individuals with multiple nationalities may renounce one nationality.
5. By Substitution: Acquiring the nationality of one state in place of another.

Double Nationality and Nationality of Married Women

Double nationality arises when a person possesses the nationality of more than one state, often due to marriage or birth in a foreign state. The Hague Conference of 1930 and later conventions aimed to address these issues. The Universal Declaration of Human Rights, 1948, affirms everyone’s right to nationality and prohibits arbitrary deprivation of nationality. The Convention on the Nationality of Married Women, 1957, and the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, further address these concerns.

Statelessness

Statelessness occurs when a person does not possess the nationality of any state, leading to significant hardships and gaps in international law application. The Convention on the Status of Stateless Persons, 1954, and the Convention on the Reduction of Statelessness, 1961, aimed to address this issue. The Universal Declaration of Human Rights asserts the right to nationality and protection against arbitrary deprivation of nationality.

Conclusion:

Nationality remains a cornerstone of international law, establishing the relationship between individuals and states. The concept encompasses not only legal bonds but also social and political connections. While states have the autonomy to define nationality within their jurisdiction, international law imposes certain obligations to ensure these definitions are respected globally. The evolution of nationality laws, through various international conventions and judicial decisions, reflects ongoing efforts to address issues such as statelessness and double nationality. The principles established in landmark cases like Nottebohm continue to influence the legal landscape, emphasizing genuine connections between individuals and states. Moving forward, continued international cooperation and adherence to established conventions are crucial in ensuring fair and consistent nationality laws worldwide.

References:

1. Fenwick, C. G. (1948). International Law. Appleton-Century-Crofts.
2. Re Lynch, British-Mexican Claims Commission.
3. Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, International Court of Justice, 1955.
4. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898).
5. Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930.
6. Convention on the Nationality of Married Women, 1957.
7. Convention on the Reduction of Statelessness, 1961.
8. Universal Declaration of Human Rights, 1948.
9. International Covenant on Civil and Political Rights, 1966.
10. Stoeck v. The Public Trustee, 1919.
11. Convention on the Status of Stateless Persons, 1954.
12. Convention on the Elimination of All Forms of Discrimination Against Women, 1979.

Book:

Dr. S. K. Kapoor – International Law & Human Rights.