Understanding Nationality: Rights, Acquisition, and Loss

Posted on May 3, 2024 in Law & Jurisprudence

Nationality

1. Introduction

Nationality is the status of a person who is attached to a state by the tie of allegiance. It is a relationship between a state and an individual. The fundamental basis of a person’s nationality is membership in an independent political community. The determination of nationality falls within the doctrine of municipal law. The Hague Conference (1930), while adopting the Convention on Certain Questions Relating to the Conflict of Nationality Laws, left it to each state to determine “who are its nationals under its own laws.”

2. Meaning

The word “nationality” is derived from the word “national,” which simply means a subject of a particular state.

3. Definition

According to Oppenheim: “Nationality of an individual is his quality of being a subject of a certain state.”

M. P. Tandon: “Nationality is the character or quality arising from membership of some particular nation or state which determines the political status and allegiance of a person.”

4. Determination of Nationality

U.S. v. Wong Kim Ark (1898): It was held that a state may determine what type or class of people shall be entitled to citizenship.

5. Right of Nationality

According to Article 15(1) of the Universal Declaration of Human Rights (1948), everyone has the right to a nationality. The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws (1930) provides that it is for each state to determine under its municipal law who are its nationals.

6. Importance of Nationality

Strak’s Views:

• Protection of Rights: Protection of the rights of diplomatic agents is a consequence of nationality.
• Jurisdiction of State: A state exercises jurisdiction over civil and criminal matters over persons of its nationality.
• Practice of State During War: During war, the enemy is determined on the basis of nationality.
• Refusal to Extradite: A state can refuse to extradite its own nationals.
• Responsibility of State: States shall be responsible for harmful acts committed by their nationals if they allow them to commit such harmful acts.

7. Modes of Acquisition

Following are the modes of acquisition of nationality:

I. By Birth

The chief mode of acquiring nationality is by birth. A person acquires the nationality of the state where they are born.

(i) Kinds of Nationality by Birth:

• (a) Jus Soli: It is nationality according to the territory or locality of birth.
• (b) Jus Sanguinis: It is nationality according to the nationality of the parents.

II. By Naturalization

Naturalization is a process by which a person living in a foreign state acquires citizenship of that state. It takes place when a person becomes the subject of a state to which they were previously an alien. There are six ways of naturalization:

• (a) Marriage: The wife assumes her husband’s nationality if the latter is a national of another state.
• (b) Legitimation: A legitimate child acquires the nationality of their father.
• (c) Option: If a person fulfills the requisite conditions prescribed by the law of any state, they may be offered nationality by that state.
• (d) Domicile: If a person keeps domicile of a state, they also get the nationality of that state.
• (f) Government Service: If a person gets government service in a state, they acquire the nationality of that state.
• (i) Permission by State to Apply: If the law of any state permits applications from persons for conferring nationality, such persons may get nationality if they prove their eligibility.

III. By Resumption

It happens when a person resumes their nationality after losing it.

IV. By Subjugation

It is acquired when a state is defeated or conquered, and when all citizens acquire the nationality of the conquering state.

V. By Cessation

When a state has been ceded to another state, the people of that territory get the nationality of the state in which the territory has been merged.

VI. By Legislative or Administrative Act

Nationality can also be acquired by the legislative or administrative act of the state.

8. Modes of Losing Nationality

According to Oppenheim, nationality can be lost in the following ways:

• (i) Release: It is effected by submitting an application by the nationality holder. If the application is allowed, they may lose their nationality.
• (ii) Deprivation: Some states provide for deprivation of nationality in certain circumstances. If a national of a state gets an appointment in another state without seeking prior permission from their state, they will be deprived of nationality in that state.
• (iii) Residence Abroad for a Long Period: If a person resides for a long period abroad, their nationality is lost.
• (iv) Substitution: Loss of nationality by substitution occurs when a person loses the nationality of one state and acquires the nationality of another state.

9. Difference Between Nationality and Citizenship

10. Conclusion

To conclude, nationality is a legal relationship between a state and its citizens. A person without nationality is stateless. The Universal Declaration of Human Rights (1948) provides that everyone has the right to a nationality. There are different modes of acquiring and losing nationality.