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(..6..)
Nationality
QUESTION BANK
Short Notes
SYNOPSIS
I. Meaning and definition of ‘Nationality’-
1. According to Oppenheim-
2. According to Fenwick-
II. Importance of national-
1. Right of diplomatic protection-
2. To decide character of person-
3. For Extradition purpose-
4. To receive its nationals-
5. To provide military services-
6. Not to prosecute or ill-treat-
7. To present international claim-
8. To decide liability of the State-
III. Some concepts reassembling ‘nationality’-
1. ‘Nationality’ and ‘domicile’-
(a) As to meaning-
(b) Relationship-
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(c) Single / double-
(d) Importance-
2. Nationality and Citizenship-
a. Meaning-
b. Scope-
c. Possession-
d. Loss of-
e. Residence-
f. Political rights-
IV. Modes of acquisition of nationality-
1. By birth-
2. By Descent-
3. By Naturalisation-
4. By Resumption or Reintegration-
5. By Subjugation-
6. By Cession-
7. By Option-
8. By Registration-
V. Loss of Nationality-
1. By Release-
2. By Deprivation-
3. By long residence abroad-
4. By Renunciation-
5. By Substitution-
Short Notes-
1. Double Nationality-
a. Circumstances in which double nationality arises-
(i). By Birth-
(ii). Adoption-
(iii). By legitimization-
(iv). By Naturalisation-
(v). By Marriage-
b. Consequences of double nationality-
(i). No redressal can be claimed-
(ii). Conflicting Rights and duties.
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c. Solutions to resolve the problem of nationality-
2. Statelessness-
a. Reasons of Statelessness-
b. Problems due to statelessness-
c. Solutions to the problem of “Statelessness”-
3. Aliens-
a. Rights of aliens-
b. Duties of Aliens-
I. Meaning and definition of ‘Nationality’-
‘Nationality’ is a distinctive quality and belonging to a group with common origin
and tradition.
1. According to Oppenheim-
The “Nationality” of an individual is the quality of being a subject of a certain
state and, therefore, its citizens.
2. According to Fenwick-
“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
protection of that state and which subjects him to the obligations created by the laws of
that state.
Nationality is an important link between the individual and the state. This interlink
establishes a continuing relationship between the state and the citizen. It shows that an
individual is a member of a particular independent state. Nationality is the connecting
factor between the individual and the state for the purpose of the benefits and burdens
imposed by international law. Moreover, the State is duty-bound to protect its citizens.
In fact, the matter of nationality is mostly left to the states. The state is free to
determine, by its own constitution and other legislation, who is entitled to its nationality.
II. Importance of nationality-
Nationality is important in international law in the following respects-
1. Right of diplomatic protection-
Due to the nationality of a particular state, an individual gets diplomatic protection
in another state.
2. To decide the character of a person-
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Nationality is the basis upon which a foreigner's character, whether he is an enemy
or friend, is decided.
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3. For Extradition purposes-
A person's nationality is very important for extradition purposes. Some states do
not extradite their nationals who commit crimes abroad.
4. To receive its nationals-
The state whose individual is national is duty bound to receive him back who is
deported from other states.
5. To provide military services-
The state has the right to compel its nationals to provide military services as and
when required. However, the state cannot compel foreigners to give military services.
6. Not to prosecute or ill-treat-
No state can ill-treat or prosecute a foreigner for his crime committed in another
state.
7. To present international claim-
An individual's nationality is important to present the international claim of the
individual before international forums.
8. To decide the liability of the State-
The home state of criminals can be held liable for failure to prevent such criminals
from committing crimes on foreign lands, for example, Somalia for piracy in the deep
sea, Pakistan for spreading terrorism, etc.
II. Some concepts reassembling ‘nationality’-
There are some concepts like ‘domicile’, ‘citizenship’, etc., which resemble the
concept of ‘nationality’, but there are differences in these concepts. We will discuss the
differences between them as follows-
1. ‘Nationality’ and ‘domicile’-
There are following differences between these two concepts viz.
(a) As to meaning-
The ‘Nationality’ of an individual is the quality of being subject to a certain state
and, therefore, its citizen. In other words, Nationality is interlinked between individual
and Nation.
Whereas ‘domicile’ is the place where a man has his true, fixed and permanent
home and to which he has the intention of returning when away. Permanent residence
and intention of returning are important circumstances of domicile.
(b) Relationship-
‘Nationality’ connotes the relationship between the individual and the state to
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which he has his allegiance. In contrast, the term ‘domicile’ connotes a relationship
between the individual and the locality of his permanent residence.
(c) Single/double-
A person may have double nationality or no nationality at all. However, every
person has a domicile at every period of his life, and there is only one domicile.
(d) Importance-
Nationality is important from an international point of view. It confers
international rights and obligations, whereas a domicile confers rights and imposes
obligations of local importance. International law has nothing to do with domicile.
2. Nationality and Citizenship-
‘Nationality and ‘Citizenship’ are used interchangeably; however, there are the
following differences-
a. Meaning-
Nationality is the quality of belonging to a particular state by which the person is
internationally known. On the other hand, ‘citizenship’ denotes the relationship between
the person and Municipal Law.
b. Scope-
‘Nationality’ is a broader concept that has significance in international
law, whereas ‘citizenship’ is a narrow concept that has limited significance.
c. Possession-
All citizens may possess the nationality of a particular state; however, all nationals
may not be citizens of a particular state. In other words, a person may have nationality
but not citizenship.
d. Loss of-
A person may continue his nationality if he loses citizenship; however, a person
may not live in the country if he loses citizenship of that country.
e. Residence-
‘Nationality’ is not accompanied by residence, whereas citizenship is
accompanied by residence.
f. Political rights-
Mere ‘nationality’ does not endow political rights, whereas citizenship gives
political rights to the person.
III. Modes of acquisition of nationality-
A person acquires nationality of a State as per the rules of Municipal
Law. Municipal Law determines who may be nationals of the State. Generally, there are
the following modes of acquisition of nationality-
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1. By birth-
Many states confer ‘nationality’ on a person based on his birth. All persons whose
birth takes place within the state's territorial limits acquire that state's nationality. This
principle is called ‘jus soli’. India, the USA, the UK, and Latin America follow this
principle of conferring nationality.
2. By Descent-
A person may acquire nationality based on the nationality of either of his/ her
parents. This principle is known as ‘jus sunguinis’. Thus, a child may become a national
of the state in which nationals his parents are. India, Germany, France, the USA, UK
confers nationality in this way.
3. By Naturalisation-
Nationality is said to be acquired through ‘naturalisation’ when a person born in
one state acquires nationality in another. Such nationality may be acquired through
marriage, legitimisation, option, domicile, adoption, grant of application, etc. Mother
Theresa acquired Indian nationality through naturalisation, although she was a national
of Yugoslavia.
One cannot claim ‘naturalisation’ as his right. It was held in Nottebohm’s Case
(1955) by the International Court of Justice.
Citizenship (Amendment) Act. 2019 provides citizenship for illegal migrants of
Hindu, Sikh, Buddhist, Jain, Parsi and Christian religious minorities who had fled
persecution from Pakistan, Bangladesh, and Afghanistan before December 2014.
4. By Resumption or Reintegration-
If the person who has lost the ‘nationality’ of one state again gets it, it is called a
‘Resumption’. Thus, if an Indian national acquires American nationality, by
relinquishing Indian nationality, again comes to India and settles here, he can acquire the
nationality of India by ‘resumption’ if he relinquishes American nationality.
5. By Subjugation-
When a state conquers another state, the nationals of that state become the
nationals of the conquering State. The people in Goa, Daman and Diu were Portuguese
nationals. India annexed them in 1982. Portugal nationals have become Indian nationals
since its annexation.
6. By Cession-
When part of the territory of a state is ceded to another state, all the nationals’ of
the former state acquire the nationality of the letter state.
7. By Option-
When a State is partitioned into two or more States, the nationals of the former
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state have the option to become the nationals of any of the successor States.
8. By Registration-
A person may acquire the nationality of a state through registration. However,
the process of registration may differ from state to state.
S. 5 of the Indian Citizenship Act 1955 also provide for granting citizenship by
registration.
IV. Loss of Nationality-
A person may lose his nationality in any of the following ways-
1. By Release-
A person loses nationality by release.
2. By Deprivation-
In certain circumstances, a national of a State may be deprived of his nationality.
Thus, a national of one state may be deprived of his nationality if he enters into foreign
civil or military services without the permission of the State of his nationality or if he
acquires nationality of the State by fraud if he becomes disabled or trades with an enemy,
etc.
3. By long residence abroad-
Long residence abroad is another ground for losing nationality. Laws of many
States provide that the person loses his nationality by long residence abroad.
4. By Renunciation-
A person may renounce his nationality. In the cases when a person possesses
double nationality (either by birth in the State, marriage or otherwise), he may renounce
one of his nationalities. For example, a child born in America gets American citizenship
at the very time he is a national of India if his parents are Indian nationals.
5. By Substitution-
Many states provide that when a person gets the nationality of that state, he loses
his earlier nationality. Thus, when the person of the nationality of one state is made
National of another state by way of ‘naturalisation’, he loses his former nationality.
Short Notes-
1. Double Nationality-
Duel or double Nationality is the nationality of two States.
a. Circumstances in which double nationality arises-
We will discuss the circumstances in which double nationality arises-
(i). By Birth-
When a child takes birth in one state (say in England) to parents who are nationals
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of France, the child acquires double nationality, that is, of England and France, by the
rule of jus soli and jus sanguinis.
(ii). Adoption-
When a person of one nation adopts the child of another nation, the child gets
double nationality.
(iii). By legitimisation-
A child may acquire double nationality by way of legitimisation, e.g. A German
man staying in England has Extramarital relations with an English lady, and a child is
born to them; the child gets nationality of England, but if the German marries the lady
and legalises the relations, the child also gets German nationality through
legitimization.
(iv). By Naturalisation-
When a person acquires nationality by naturalisation, he sometimes gets double
nationality: of the previous State (if that nationality is not waived) and of the naturalizing
state.
(v). By Marriage-
When a woman marries a person from another nation, she gets double nationality.
b. Consequences of double nationality-
Double nationality creates the following problems-
(i). No redressal can be claimed-
At international law, if a National of one state suffers wrong in another state, the
nationals of that state, the state of which he is national, can claim redressal on his behalf.
In such circumstances, the other State has to redress the nation for the wrong committed
against its national. However, one state of which the person is national cannot claim
redress from another state if the person is a national of that state. Thus, neither state can
claim redressal inter-se, i.e., among states where the person is national.
(ii). Conflicting Rights and duties-
Double nationality sometimes creates a very serious problem of conflicting rights
and duties; for example, if both States demand military services from him at the time of
War, he cannot provide it.
If such states are waging war against each other, the question becomes more
critical; the citizens may get enemy characters from both States.
c. Solutions to resolve the problem of nationality-
The Hague Convention on Conflict of Nationality Laws in 1930, from Art. 1 to 6,
lays down some solutions to resolve nationality problems, viz.
(i). Nationality is to be accorded to a person born in the country who would otherwise
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be stateless.
(ii). If an individual possesses the nationality of two or more States, it is open to each of
the states to claim him as its national.
(iii). A State may not give diplomatic protection to its national against the state whose
nationality that person possesses.
(iv). A person having double nationality is treated in the third state as if having only one
nationality.
(v). If the law of a state enforces loss of nationality as a consequence of marriage or
termination of marriage, such loss must be conditional upon possession or
acquisition of another nationality.
(vi). An individual shall have the right to choose one nationality and divest himself of
the other nationality.
2. Statelessness-
‘Statelessness’ means a person having no nationality. He is not considered a
national by any state. Thus, a ‘stateless person’ means a person who is not considered a
national by any state under the operation of its law.
a. Reasons for Statelessness-
There are the following reasons for statelessness-
(i) Lack of uniformity in the nationality laws of different states.
(ii) Change of sovereignty over the territory.
(iii) Denunciation by the State of nationality.
(iv) Gap or lack of nationality law when a new state comes into being.
b. Problems due to statelessness-
An individual faces several serious problems due to statelessness, as follows-
1. Difficulty arises as to his identity.
2. Difficulty arises in getting travel permits.
3. Difficulty arises in getting a marriage license.
4. Difficulty arises in getting diplomatic protections.
5. The state may order such a person to leave the country; other states may not agree to
his immigration.
6. He does not get political or necessary civil rights.
c. Solutions to the problem of “Statelessness”-
Considering the problems faced by stateless persons, a lot of efforts are taken at
the international level to end or minimise their problems.
Hague Convention of 1930, Universal Declaration on Human Rights. 1948, etc.,
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have made attempts to reduce statelessness. However, the United Nations adopted a
convention on the Reduction of Statelessness in 1961, thereby making important
provisions to reduce statelessness as follows-
(1) Nationality is to be granted based on residence.
(2) Nationality should not be deprived based on racial ethnicity, religion, political
ground, etc.
(3) No person shall be deprived of his nationality except if he commits an offence against
national security.
(4) Descent or birth should be grounds to endow nationality.
(5) De facto (in fact, not in law) State should be enabled to endow de jure nationality.
3. Aliens-
The word ‘Alien’ is synonymous with the word ‘foreigner’. Alien means ‘a person
belonging to a foreign country or is without the country’.
In order words, an ‘alien’ is a person who resides in a country where he is a
‘foreigner’.
Aliens do not enjoy the civil and political rights available to the
citizens. However, aliens such as tourists and students are willingly admitted by the
states; however, immigrants do not get willing admission to other states.
a. Rights of aliens-
According to the UN Declaration on Human Rights of Aliens adopted in 1985,
Aliens enjoy the following social, economic and human rights-
(1) The right to life and security of a person.
(2) The right to protection against arbitrary or unlawful interference with privacy, family,
home or correspondence.
(3) The right to be equal before the courts, tribunals and all other organs and authorities
administering justice.
(4) The right to choose a spouse to marry and to form a family.
(5) The right to freedom of thought, opinion, conscience and religion.
(6) The right to retain their own language, culture and tradition.
(7) The right to transfer abroad the earnings, savings or other personal monetary assets,
subject to domestic currency regulations.
(8) The right to leave the country, right to freedom of expression, right to peaceful
assembly and the right to own property.
(9) The right to liberty of movement and freedom to choose their residence within the
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borders of the state.
(10) The freedom from torture and from cruel, inhuman or degrading treatment or
punishment etc.
b. Duties of Aliens-
As aliens enjoy some rights, they are also subject to the following duties-
(1) Aliens are subject to the law of the nation.
(2) He must register his name with the public authority and perform his Civic duties.
(3) Aliens cannot claim exemption from local laws, ordinary Taxes, customs charges,
etc.
(4) Aliens should owe temporary allegiance to the state of residence.
(5) Aliens are required to abide by local laws. They are also required to respect local
customs and traditions.
(6) Expropriating aliens’ property can be done for public purposes per international law.
(7) Aliens can be expelled for violating local laws for interfering in the state's internal
affairs. Under this ground, India has forfeited visas of foreigners who had come on
travelling visas preaching religious knowledge and had violated Indian law(on
unlawful assembly) during the Coronavirus spread.
*****