Nationality: acquisition, loss, statelessness and the Nottebohm case

1. Meaning and importance

Nationality is the legal bond between a person and a State. In Nottebohm (ICJ, 1955) it was described as a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It matters to international law because:

• it is the basis of diplomatic protection: a State may take up the claims only of its own nationals;
• it is a basis of jurisdiction (the nationality principle);
• States generally do not extradite their own nationals (civil-law practice);
• a State must admit its own nationals, and in war enemy nationals may be interned.

Each State determines under its own law who are its nationals, but that determination is recognised by other States only so far as it is consistent with international law (Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, 1930, Article 1; Nationality Decrees in Tunis and Morocco, PCIJ, 1923, which held nationality to be in principle within the domestic jurisdiction, subject to treaty obligations). Article 15 of the Universal Declaration of Human Rights: everyone has the right to a nationality, and no one shall be arbitrarily deprived of it.

2. Nationality and citizenship

The terms are usually used interchangeably. Strictly, nationality is the international concept (the link with a State); citizenship is the municipal concept (full civil and political rights inside the State). A national may not be a citizen, as with British protected persons in the colonial period.

3. Modes of acquisition

• By birth. Two principles: jus soli (nationality of the place of birth, the traditional rule of the US and common-law countries) and jus sanguinis (nationality of the parents, the civil-law rule). Many States combine them.
• By naturalisation: grant by the State on application, after residence and other conditions, usually with an oath of allegiance. Also by marriage in some systems, by legitimation or by adoption.
• By registration: a simpler route for persons with a connection to the State, such as persons of the State's origin or spouses of nationals.
• By incorporation or subjugation of territory: inhabitants of territory acquired by the State become its nationals.
• By option: on a transfer of territory, inhabitants may be allowed to choose.
• By re-admission (resumption) of a person who had lost nationality.

India: the Citizenship Act, 1955. The Constitution's Articles 5 to 11 dealt with citizenship at its commencement and left the rest to Parliament under Article 11.

• Birth (section 3): born in India on or after 26 January 1950 but before 1 July 1987, a citizen regardless of the parents' nationality; born between 1 July 1987 and 2 December 2004, if either parent was a citizen; born on or after 3 December 2004, if both parents are citizens, or one is a citizen and the other is not an illegal migrant. The move away from pure jus soli is plain.
• Descent (section 4): birth outside India to a parent who is an Indian citizen, subject to registration conditions.
• Registration (section 5): persons of Indian origin ordinarily resident in India for seven years, spouses of citizens resident for seven years, minor children of citizens, and others listed.
• Naturalisation (section 6): a foreigner, not an illegal migrant, ordinarily resident for twelve years and meeting the Third Schedule qualifications. Section 6B, inserted by the Citizenship (Amendment) Act, 2019, provides a special route for specified communities from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2014.
• Incorporation of territory (section 7): where a territory becomes part of India, the Central Government specifies by order the persons who become citizens (used for Goa and Pondicherry).

4. Modes of loss

• Renunciation: a voluntary declaration giving up nationality, usually on acquiring another.
• Release granted by the State on application.
• Deprivation: withdrawal by the State for fraud in acquisition, disloyalty, service of a foreign State, or long residence abroad.
• Expiration: loss by long residence abroad without registration.
• Substitution: automatic loss on voluntary acquisition of another nationality, or, in some older laws, on marriage.

India: renunciation by declaration (section 8); termination on voluntary acquisition of the citizenship of another country (section 9), with the Central Government determining any question (section 9(2)); and deprivation by order of the Central Government (section 10), available only against citizens by naturalisation or registration (and certain constitutional citizens), on grounds such as fraud, disloyalty to the Constitution, unlawful trade with the enemy in war, a sentence of two years within five years of naturalisation, or continuous residence outside India for seven years.

5. Double nationality and statelessness

Double nationality arises where the laws of two States both claim a person, for example a child born in a jus soli State to parents of a jus sanguinis State. Rules: a State may not exercise diplomatic protection on behalf of a national against another State whose nationality the person also possesses (Hague Convention, 1930, Article 4); a third State applies the effective or dominant nationality (Article 5; Mergé claim, USA v. Italy, 1955). India does not allow dual citizenship; Overseas Citizenship of India (sections 7A to 7D) is a registration status, not nationality.

Statelessness arises from conflict of laws, deprivation or the dissolution of a State. A stateless person has no State to protect him. Instruments: the Convention relating to the Status of Stateless Persons, 1954, and the Convention on the Reduction of Statelessness, 1961, which requires a State to grant nationality to a person born in its territory who would otherwise be stateless, and limits deprivation that would cause statelessness. India is party to neither.

6. The Nottebohm case

Nottebohm (Liechtenstein v. Guatemala), ICJ, second phase, 1955.

• Facts. Friedrich Nottebohm, a German national by birth, lived in Guatemala from 1905 and carried on business there. In October 1939, shortly after the war began, he visited Liechtenstein, where his brother lived, and obtained naturalisation after a few weeks, with the residence requirement waived, thereby losing German nationality. He returned to Guatemala on a Liechtenstein passport. In 1943 Guatemala, at war with Germany, arrested him as an enemy alien, deported him to the US for internment, and confiscated his property. Liechtenstein brought a claim for diplomatic protection.
• Held (eleven votes to three): the claim was inadmissible. Nationality conferred by a State is opposable to another State only if it reflects a genuine link between the individual and the State. Nottebohm's links with Liechtenstein were slight (no settled residence, no intention to settle, only a brief visit), while his links with Guatemala were of thirty-four years' standing. The naturalisation was sought to obtain neutral status in wartime, not to join the Liechtenstein community.
• Significance. The genuine-link test limits a State's power to confer nationality for international purposes. Criticism: it left Nottebohm with no State able to protect him; and the ILC's Draft Articles on Diplomatic Protection, 2006 (Article 4), do not require a genuine link, treating Nottebohm as confined to its facts. The same idea of a genuine link appears for ships in Article 91 of UNCLOS.

How this is examined

The modes essay should give the international law categories first, then the Indian sections (3, 4, 5, 6 and 7 for acquisition; 8, 9 and 10 for loss), and close with double nationality and statelessness. The Nottebohm note needs the 1939 naturalisation, the 1943 arrest, the genuine-link holding and one line of criticism.