This article is written by Aryan Kashyap from Lloyd Law College, Greater Noida. This is an exhaustive article covering aspects of gaining and losing nationality as well as the concept of dual nationality, all in reference to the International context.
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.
Main theories related to Nationality
Active Nationality Theory
Generally deemed non-controversial, it states that a state enjoys the right to exercise its jurisdiction over its nationals, even when they are in a foreign territory. When obeying private International laws (The obligations of a nation with respect to other countries ), the national laws always tend to follow an individual beyond the boundaries as far as his personal status is concerned. Hence, the court must compulsorily follow International laws, at the same time make sure that they are not violating domestic police laws or any public order.
When referring to criminal laws, the principle refers to jurisdiction to adjudicate, whether a state can adjudicate a crime committed abroad? This becomes even a bigger issue when the convict changes his/her nationality. A criminal might escape charges by the change of their nationality after they have committed the crime.
An act might be a crime in one state and somewhere else in the world it could be just another everyday activity, thus making you immune from any punishment. Eg. In Arkansas, an individual cannot play more than 25 free games if he continues to win, whereas this might not be the case somewhere else in the world.
It is a highly debated topic whether a state can follow its own criminal jurisdiction on the basis of the nationality of the accused. The U.S Supreme Court and some authors have raised their concerns. It is a concern of international law about how the states treat their nationals. Critics to this view say that it is the state’s duty under international laws.
Passive Nationality theory
A state at times assumes extraterritorial jurisdiction over foreign nationals if the person who has suffered damages is it’s national. The idea behind the exercise of passive nationality is to fulfil the duty of a state to protect its nationals from the damage suffered by them in case the alien state fails to punish the offender.
It is still a matter of dispute whether the nationality of the victim and the jurisdiction purview should befall under the ambit of international law. It is viewed as the most aggressive basis of extraterritorial jurisdiction. Donnendieu de Vabres– A famous French Jurist criticised the passive theory saying it is just a means of the powerful states to satisfy their power egotism over the weaker states.
The biggest drawback of this theory is that the defendant is unaware of what laws will be befalling upon him and it might be a serious crime in some other state, thus deeming this theory quite unjust for the defendant.
Doesn’t sound a big enough issue for you? The United Nations High Commissioner for Refugees (UNHCR) defines a stateless person as, “an individual who is not considered a national by any state under the operation of its law”. In layman’s terms, it refers to a person devoid of the nationality of any state.
Statelessness stands against the morale of Universal Human Rights. It deprives the masses the early comfort of a cradle and the late peace of the grave. I urge my readers to watch this short video from the 2014 UNHCR report, this will make the concept much easier for you to understand.
What are the biggest causes of statelessness?
The UNHCR report estimates approximately 10 million people to be stateless around the world. Overlooking the rapidly rising global population, these numbers would have increased. The biggest causes are:
States might discriminate amongst their people on the basis of their race, religion, ethnicity, language or even gender. The states can amend their laws based on some discriminatory criteria, capable of deeming the whole population stateless.
It is observed that the majority of the stateless populations belong to a minority group. Gender discrimination is viewed as one of the main causes of childhood statelessness. E.g. Laws of countries like the Middle East, North Africa (12 states), Sub-Saharan Africa (inclusive of nine states), Asia (4 states) and the Americas (2 states).
Carelessly drafted laws
All the countries have laws which set down the procedure and conditions of how individuals acquire the nationality of the particular state. Many a time it is not well researched and not quite well drafted thus excluding some sections of people as a whole, who are then labelled as stateless.
The advent of new states
The emergence of new states and change of frontiers, though provides a chance to attain the nationality for all the ethnic, racial and religious minorities. It has certain potholes which leave space for mistakes. The stateless individuals are unable to provide their linkage to the countries. This has even bigger provisions, for states where nationality is passed on the basis of lineage. It deems an entire generation of people to be stateless.
Being born in a foreign country
A child born in a foreign territory faces the potential risk of being stateless if the parent nation does not provide nationality based on birth alone. In other cases, there might be laws barring the child from attaining nationality because of being abroad.
Loss or deprivation
Living outside your homeland for a long duration of time can also make you lose your nationality.
Failing to prove their links to a state
If an individual is unable to prove their linkage to a state in terms of basic certificates like birth certificates, land papers etc.
Consequences of statelessness
- Leads to lack of education (even at a basic level).
- Lack of medical facilities.
- Unable to avail basic services like banking.
- Unable to buy houses, lands or any sort of estates.
- Ineligible for marriage.
How can you help?
So you feel for the cause of more than 10 million helpless people but are not sure how you can help. Well here are some insights that might help you.
UNHCR is determined to end statelessness by 2024. There are a lot of ways you can contribute to this cause:
- Join and be a part of the UNHCR’s campaign #IBELONG Campaign to end this injustice. You can follow this link and visit UNHCR’s official website to explore this further.
- You can donate to support the stateless people. You might feel that it is not enough. But we must always remember, drops came together to form an entire ocean. Your little contribution can metamorphose somebody’s life.
- Sign UNHCR’s open letter to end statelessness.
- The power is in your hands! With powerful platforms like Facebook, Twitter, Instagram, LinkedIn etc. you can reach the masses and raise awareness. The masses are unaware of the problem. You can share short and effective videos like this one here and ask your peers and relatives to share it further.
- You can share the story of the people you might know who have been facing any such problems. Share templates like these shedding some light on statelessness.
Human Rights and the procedures available for their enforcement
What are Human Rights?
There are some basic human rights which are enjoyed by any individual anywhere in the world. It is for one and all, regardless of these:
- Any other such status
What all does Human Rights include?
- Right to Life.
- Right to Liberty.
- Right to Freedom.
- Right to Slavery.
- Right to Torture.
- Right to Freedom of Opinion.
- Right to Expression.
- Right to Work.
- Right to Education.
Everybody is entitled to enjoy these basic human rights, anywhere in the world.
International Human Rights Law
The International Human Rights Laws are a set of obligations and duties which all the states are supposed to follow compulsorily for the upkeep and protection of the spirit of Fundamental rights of all the people. Humanity has faced slavery for like forever now, it is time to bring a change, bring equality.
One of the biggest achievements of the United Nations is that it has broadly defined a wide range of internationally accepted rights like:
- Civil rights.
- Cultural rights.
- Economic rights.
- Political rights.
- Social rights.
These rights are not just widely accepted but are also well laid down so that the states can carry out their responsibilities effectively.
The foundation stones of these laws
Charter of the United Nations (1945)
It is the constructive instrument of the UN, which puts in place the duties of the member states, establishing the principal organs. The Charter consists of a preamble and 111 articles incorporated into 19 chapters. They are:
- Chapter 1 sets forth the purposes and principles of the UN.
- Chapter 2 establishes the criteria for UN membership.
- Chapter 3 names the six principal UN organs.
- Chapter 4-15 defines the functions and powers of these organs.
- Chapter 16-17 relates to the UN to existing international law.
- Chapter 18-19 defines the amendment and ratification of the Charter.
The Universal Declaration of Human Rights (1948)
The most translated document in the world, the UDHR has been translated into over 500 languages. It is also the source of inspiration for the newly independent states and the fresh democracies. It is the first such document of its kind in human history. It stated for the first time that rudimentary Human rights must be protected universally.
The UDHR works together with these bodies:
- International Covenant on Civil and Political Rights: this has its own optional protocols to be followed on the following:
- Complaints procedure.
- The death penalty.
- International Covenant on Economic, Social and Cultural Rights (ICESCR): this too has its optional protocols from the International Bill of Human Rights.
Procedures of enforcement of Human Rights
Several mechanisms of the UN have come up. We are going to shed some light on the main organs which help in the due process of enforcement of Human Rights:
Committee on Economic, Social, and Cultural Rights (CESR)
It is an organ of the United Nations Economic and Social Council (ECOSOC). The main purpose of this organ is to keep an eye on the states and watch if they are fulfilling their obligations.
- Articles 16 and 17 of the ICESCR requires the states to prepare and submit a report on the ESCR situation of their country.
- The CESR then analyses to what extent are the rules being followed in any state.
- If a country refuses to provide a report on the ESCR situation then it can overlook the situation and obtain the resources using alternative sources.
- After these processes, the CESR then analyses and releases its own inputs, matters of concerns and recommendations.
High Commissioner on Human Rights
It is the sworn duty of the high commissioner to:
- Protect human rights.
- Promote human rights.
- Ensure uniformity of human rights in all UN’s activities.
- Encourages states to develop policies and institutions conducive to human rights.
- Provide technical assistance to the state’s machinery to achieve these goals.
The Human Rights Council, Special Procedures and Working groups
This body substituted the Commission on Human Rights as the primary UN body charged with monitoring and evaluating the state of Human Rights in countries across the world. It also finds solutions and highlights the issues.
The processes include:
- A system of special protocols.
- Expert advice.
- A complaint procedure.
The council meets at least thrice a year, functions under:
- A plethora of working groups.
- Special procedures.
- Open-ended working groups.
- Individual complaint mechanism.
- Communication of urgent appeals or letter of allegations.
The United Nations Human Rights Treaty Mechanisms
There are various treaty mechanisms, with the help of these organisations the UN is able to efficiently instill the basic human rights.
These bodies are:
- Women and ESCR
- Corporate Accountability
- Strategic Litigation
- System of Solidarity (SOS)
- Social Movements and Grassroots Groups
- Economic Policy and Human Rights
Acquisition of Nationality
All the State’s and even the International Bodies have laid down certain provisions on how someone can acquire the nationality of any country. Nationality is acquired most commonly on these grounds:
Nationality by Birth
Being born in a country qualifies you to be a national of the respective country. This is usually referred to as Jus Soli. It is a Latin term, its literal translation is “right of soil”.
The states which follow the principle of jus soli, allow the individual to acquire the citizenship of that particular state on the virtue of being born on the state’s territory. This is provided despite the citizenship or the immigration status of the respective individual’s parents.
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.
The process by which a foreign citizen becomes eligible to acquire the nationality or citizenship 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.
Nationality by Marriage
Individuals need not keep renewing their visa and burning a hole into their pockets for the sake of love. Foreign individuals have the opportunity to be a permanent citizen of the state where your significant other might be. This is known as a citizenship marriage.
The Hague Convention on Conflict of Nationality Laws (1930) laid down certain provisions regarding nationality by marriage. Chapter 3 of the same talks about the Nationality of married women. The main articles of these laws are:
- Article 8: On the occasion of marriage, if the wife’s national laws cause her to lose her nationality, the consequence of the responsibility completely befalls upon the wife to acquire the nationality of the husband.
- Article 9: If the national laws require her to lose her nationality when she acquires the nationality of her husband through marriage. The consequence of the act shall be on the condition of her acquiring her husband’s new nationality.
- Article 10: If the situation where a husband is naturalized, the change in the wife’s nationality is not possible until and unless without her full consent.
- Article 11: In case of marriage dissolution, the wife shall be ineligible to recover her previous nationality. She can only do so in accordance with the respective country’s laws. If the wife is successful in regaining her previous nationality, then the nationality acquired by virtue of marriage shall be deemed void.
Nationality by Adoption
This is also referred to as intercountry or transnational adoption. This is very similar to any normal adoption procedure, just in an international context. By the virtue of this measure, an individual or a couple can be deemed legal parents of a child belonging to a foreign nation.
There are certain protocols to be followed before this can be granted. The individual or couple will have to be eligible. The eligibility criteria for the child are:
- The parents (either Couple or individual) must be permanent citizens of a state, either by birth or via naturalization.
- The child must be under 18 years of age.
- The child must be a permanent citizen of the state from where he is being adopted.
- The child must be under the legal custody of some guardian in his/her state.
Nationality by Cessation
The literal meaning of cessation is the process of ending or bringing to an end. When we talk about nationality by cessation, we refer to the cessation clauses which were expressed in the conference of Plenipotentiaries held in 1951. This conference laid that an individual must not be provided refugee status any longer than it is absolutely required. This had to come to a halt in accordance with the terms and conditions of the statues.
The cessation of refugee status thus comes into play when the refugees have successfully availed the protection of their country of origin or any other country of which they are nationals of now. Article 1F of the convention addresses these conditions in which an individual is no longer eligible to enjoy the benefits of refugee protection.
Loss of Nationality
Also known as loss of citizenship, this refers to the situation wherein a citizen stops or ceases to be a lawful citizen of the country. This term is an umbrella shelter for both:
Voluntary loss of citizenship
Means relinquishing one’s nationality. The prime focus here is on the voluntary part. Almost all the countries have set-up their own set of rules for the formal relinquishment of their citizenship. There are countries which do not allow that as well, they tend to trap their nationals in an endless loop of administrative red-tapism.
Involuntary loss of citizenship
States have certain provisions regarding nationality. If a citizen fails to adhere to these then his/her citizenship can be cancelled. It can happen due to a lot of things like someone failing to retain their citizenship. However involuntarily losing one’s citizenship, is not immediate, it has to undergo a series of actions to revoke someone’s citizenship.
Indian Citizenship Act on the loss of Nationality
- Section 10 of the Citizenship Act, 1955 talks about the deprivation of citizenship.
- This article states that any Indian citizen by naturalisation or by the virtue of Article 5 of the Constitution or by registration under any other circumstances other than clause (b).
Following the provisions laid down under this section, the Central Government is authorised to deprive an Indian national of his citizenship, if the following conditions apply:
- When the nationalisation or the registration certificates were obtained by unlawful means- fraud, false representation, hiding any piece of evidence related to these.
- That citizen by means of his expression is proven to be disloyal towards the spirit of the Indian Constitution and the established laws itself.
- If a citizen, during a war, tried or tries to or unlawfully communicate with an enemy or was by any means related to them.
- Associated in any business or under his senses assisted an enemy.
- If within five years of the period after naturalisation, the individual had been sentenced for a period of at least two years.
- The citizen has been a foreign Indian National, for a continuous period of seven years. If during that period, he was not enrolled as a student with any educational institution or a part of Government service in an International Organisation.
- The Centre shall not deprive any individual of citizenship until and unless they are confirmed that this is conducive for the Public good.
- Before an order is passed under this section, it is mandatory for the government to inform the person against whom the order is passed. This must be in writing. If the order falls under the jurisdiction of sub-section (2). Then this case has to be referred to a committee of Inquiry under this section.
- The Central Government must refer this case to the Committee of Inquiry, which must have a chairman (a person who has held a judicial office for at least a decade) in collaboration with two other members appointed by the Central Government.
- The Inquiry Committee must submit its report to the Central Government. The further orders shall be guided by such reports as it was ordered under this section.
An expatriate refers to a person who is residing in any other country rather than his native country. Expatriation is a voluntary right which a citizen of a country can exercise on the basis of his discretion if required. It means renouncing the nationality and allegiance of a country without any constitutional consequences.
Generally, this term refers to the professional and skilled working-class (for private entities or government organisations) or even artisans who work outside their homeland.
The main theme here is that it is voluntary, and the decision rests on the conscience of the citizen.
Renunciation of Nationality
Renunciation refers to the voluntary act by virtue of which an individual can relinquish one’s nationality. It simply means to give up. Most countries do provide their citizens with this right.
There can be a lot of reasons for people to renounce their citizenship.
The most common reasons are as follows:
- People might dislike their country’s laws. The field of law is humongous and so is the world population. Although the jurists try their best, there is still some gap, it is always not possible to appease all the sections of society. Thus there can be sections of people unhappy with some laws.
- There can be personal reasons as well as political ideology clashes. The respective countries might be engaged in a war.
- Taxation laws of a country can be a big reason. If the taxation system extracts too much from its people, the citizens might want to renounce their citizenship. One of the most popular examples of this is the wide discontent amongst the U.S citizens for their tax laws.
Loss of nationality by Substitution
Some states have the provision of providing and taking away the nationality on the basis of substitution. This happens when an individual loses the nationality of one state (his nation) and is able to attain the citizenship of another state.
Different states have different protocols. Some states will cancel your citizenship if you acquire a job in a foreign nation without following government sanctions.
Loss of nationality by Expiration
This does not exactly refer to the loss of nationality, because it is more emotional rather than political. Your citizenship might expire when you stay in a foreign nation for too long.
The concept of Double Nationality or Dual Nationality
When more than one country regards an individual as its citizen, it is called dual citizenship. Dual citizenship occurs because different countries have set-up varied methods for granting citizenship.
A person who holds dual citizenship generally enjoys the rights of citizenship of both countries. These rights can be:
- Right to hold passports.
- Right to vote.
- Right to residence.
- Right to work.
- Right to enter the country, etc.
The person is not just entitled to enjoy the rights, he is obliged to conduct certain duties like:
- National civil service.
- Subject to the taxation system of the country, etc.
Pros and Cons of Dual Citizenship
Dual citizenship is a complex concept and has many provisions. If there are many rights and powers to be enjoyed, there can be many setbacks as well.
The pros of dual nationality
- The benefits: Dual citizenship can provide a citizen with certain benefits. It depends upon the laws of the nation-states. They get to vote, they get to be a part of multiple social service programmes, eligible to hold multiple offices in both states.
- Multiple Passports: The process of getting your passport can be a long and tedious task, full of multiple runs to the passport office and lots of red-tapisms. Thus marking this benefit as the most important one. This lets the traveller evade questions related to the purpose of the trip, reasons for a long-stay. This can be very beneficial for frequent flyers, businessmen and students.
- Property Ownership: You can hold estates thus opening multiple alternate earning sources which can be financially beneficial.
- Political Security: In case of a violent break out in one of the countries, you still have a back-up option to rely on. You can rush to this safe-house with your family for their safekeeping.
- Healthcare Benefits: Some countries have excellent medical facilities in addition to insurance facilities being amongst the other perks. Thus you and your family stand at an advantage.
The cons of dual nationality
- Taxation laws might be a problem: usually if you have multiple citizenships, you are entitled to pay taxes to both the countries. This might increase your expenses by tonnes.
- Scepticism issues: you might face trouble in the run for the post of a political office. In some instances, you might be asked to forfeit your dual citizenship, in order to attain the office.
- It can be very expensive: in some nations, the price of the passports can be very costly, thus burning a hole in your pocket.
- Security issues: the governments of some nations are afraid of the maybe consequences of dual nationality. They fear that it can possibly change the majority of a nation and thus having the potential to shift the political environment of a nation.
- Might not be allowed: many countries support dual nationality, many are against it. The countries you want to be a citizen of can be of contradicting views. There is even a bigger risk that, if your nation is against dual nationality, it might even revoke your nationality in the due process of your application of nationality for some other country.
- It is a time-taking process: usually processes like these involve a lot of paperwork and undertake a lot of time. All of these processes can be very frustrating for the applicant and he/she might even give up the idea unless it is very necessary or in worst cases indulge themselves in illegal activities to attain their means.
The Nottebohm Case (Liechtenstein v. Guatemala)
- Brief Summary: After World War II broke, Nottebohn, a citizen of Guatemala, in Germany for over three decades applied for Liechtenstein citizenship.
- Facts: Nottebohn, a natural citizen of Guatemala, in Germany for 34 years, also had business ties with the state. After the outbreak of World War II applied for Liechtenstein citizenship, even though he had no ties with it. The application was approved by Liechtenstein but it was to be waived off after three years.
After this approval, Nottebohn travelled to Liechtenstein. Upon his return, he was denied entry because he ceased being a German citizen. His Liechtenstein was not honoured, collaterally causing Liechtenstein to file a suit in the International Court to force Guatemala to recognise Nottebohm as one of its nationals.
Guatemala challenged the validity of Nottebohm’s citizenship and the right of Liechtenstein to file a suit on the accused grounds.
- Issues: Can nationality be disregarded by other states in cases where it is clear that it was a mere device. The nationality that is provided to an individual has to be the concern of the conferring nation?
- The judgement: It was held by the honourable Court that the issues regarding citizenship are the sole concern of the nation which grants it. This is supposed to be generally accepted. However, this also does not imply that other states do have to unquestioningly accept the granting state’s designations. As in this particular case, there exists no relationship between Liechtenstein and Nottebohm, thus the change of nationality here was merely an act guided by the fear of war. Thus, under these circumstances, Guatemala was not obliged to recognize it.
The Effective Link principle
This is also known as the Nottebohm principle. This was observed in the Liechtenstein v. Guatemala case. This principle requires the nation to prove a meaningful connection to the state in question.
This principle is usually applied in the cases involving dual nationality, where the decision has to be made regarding which state’s citizenship has to be provided. Thus as the Court ruled in the Nottebohm’s case that there was no significant link between Nottebohm and Liechtenstein.
The sole purpose of acquiring the nationality of Liechtenstein was to escape the belligerent conditions of the state of Guatemala. Thus the court ruled that Liechtenstein was not entitled to take up Nottebohm claims on his behalf against Guatemala.
The Hague Convention, 1930
- Article 4: a state is not entitled to provide diplomatic protection to one of its citizens against another state, whose nationality such persons also possesses.
The European Convention on the reduction of Cases of Multiple Nationality, 1963
Conventions like this, the above make it clear that most of the nations deem Dual nationality as a complex system and they have strict rules regarding the same. Article 6 of the convention talks about the same:
- Article 6: Other than the cases where a special agreement exists, the following provisions are applicable to a person who holds dual or multiple nationalities of the contracting parties. Any such individual shall be subject to military obligations in accordance with the country of which he is a normal resident. Nevertheless, he should be allowed to choose up to the age of 19 years whether to submit himself to military obligations as a volunteer in relation to any other party of which he is a citizen of.
- An ordinary resident residing in the territory of a contracting party of which he is not a national is eligible to choose to perform his military obligations in the territory of any contracting party of which he is a national.
- As laid down in paragraphs I and II, an individual is obliged to perform his military obligations as the law prescribes for a party or the parties.
- A person, before the entry into the convention of parties of which he is a national or, is even related to must-have fulfilled military obligations in accordance with the laws of the, prescribed party or parties.
- An individual who in accordance with paragraph I, has performed his military service in relation to the contracting parties of which he is a national. If he transfers his ordinary residence to the territory of another party, of which he is a citizen of shall be liable to serve the military as a reserve to the latter party.
- In case of mobilisation by any party, the military obligations arising under this article shall no longer be binding upon the respective party.
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