Nationality, Citizenship and Statelessness

Introduction

Nationality is a highly sensitive issue as it is a manifestation of a country’s sovereignty and identity as a country. “It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.”[1]

“Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”[2] “According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties.”[3]

I. What is nationality?

“The political and legal bond that links a person to a given State and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that State.[4]

Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, sentiments and interests together with the existence of reciprocal rights and duties.[5] It is a legal concept that expresses the link between a State and members of its community. Nationality as a ‘framework legal relationship’: it does not establish or grant rights/duties to individuals concerned. It merely represents a necessary condition for the entitlement to these rights/duties. Nationality entitles Players to represent more than one Association[6]

What are the consequences/effects of nationality?

• Unlimited Freedom to enter and settle in a country.
• Right to participate in public/political life of the country. e.g. right to vote; access to certain public offices.
• Other ‘minor’ entitlements like diplomatic protection; benefits granted by country X to nationals of country Y, e.g. under a bilateral treaty.
• Civil/family status (in some jurisdictions where civil/family status is connected with nationality).

Duties imposed by the possession of a nationality

• In some countries: military service.
• Loyalty to one’s country but only indirectly.
• Other ‘minor’ duties such as the duty to be a member of the jury in a criminal trial or duty to help with the organisation of elections.

II. Nationality and citizenship

The terms nationality and citizenship are often confused precisely because they are so closely connected. Their present legal significance and content are of recent origin and are closely linked to a series of historical and political developments which have varied from place to place.[7] For the purposes of international law, the connection that links individuals to a particular state is labelled a link of “nationality” notwithstanding a particular individual’s ethnic background or origin, or identity.

The word “citizenship” should not strictly be used to denote that an individual belongs to a state for the purposes of international law, but that an individual possesses particular rights under a state’s municipal law.

Citizenship denotes the link between a person and a state or an association of states. Possession of citizenship is normally associated with the right to work and live in a country. A person with citizenship in a state is called a citizen of it. “Nationality” means the subjective corporate sentiment of the unity of members of a specific group forming a “race” or “nation” which may, though not necessarily, be possessed of territory and which, by seeking political unity on that territory, may lead to the formation of a State.

The terms “nationality” and “citizenship” emphasise two different aspects of the same nation-State membership. “Nationality” stresses the international, “citizenship’’ the national, municipal, aspect. Under the laws of most States citizenship connotes full membership, including the possession of political rights. It follows even from this brief survey that the terms ‘‘national” and “citizen” overlap. Every citizen is a national, but not every nation is necessarily a citizen of the State concerned.

“Nationality of an individual is his quality of being a subject of a certain State and therefore its citizen.” It is likewise a consequence of the exclusive relevance of nationality for the purpose of international law that distinctions made by municipal law between various classes of nationals are immaterial from the point of view of international law.

In general, it does not matter, as far as the Law of Nations is concerned, that Municipal Law may distinguish between different kinds of subjects— for instance, those who enjoy full political rights, and are on that account named citizens, and those who are less favoured, and are on that account not named citizens.[8]

The terms are not synonymous in international law but have largely converged in modern times because the people who are nationals of a state most often also make up its citizens. This convergence in modern times is “a result of the democratization of the state, the development of the idea of one nation-state, the development of an industrial and capitalist society and the consequent tendency to close off his nation-state”.[9]

Citizenship is acquired by birth or by naturalisation. Nationality, on the other hand, is more a description of cultural identity than a matter of political and personal rights.

Modes of Acquiring Citizenship

By Birth – The most important mode of acquiring nationality is by birth. Nationality is conferred to a person by many States on the basis of birth. All those persons who take birth within the territorial limit of a State acquire the nationality of the State. This principle is called jus soli. India also provides citizenship by birth under s.3 of the Indian Citizenship Act.

By Naturalization – The next mode of acquiring a Nationality is by naturalization. A person requires nationality at birth. But, his nationality may later on change. When the nationality of a person changes subsequently, and he acquires the nationality of some other State, the process of acquisition is called as naturalization. A person may acquire nationality through naturalization in various ways. There are six ways which are as follows –

(1) Through marriage. Example wife assuming her husband’s nationality.

(2) legitimation,

(3) Option.

(4) Acquisition of domicile,

(5) Appointment as Government official

(6) Grant on the application of the state. Adoption of the child by parents who are nationals of the other States also entitled the children to acquire the nationality of his parents.

Section 6 of the Indian Citizenship Act 1955 provides that a person may acquire citizenship by naturalization upon fulfilment of certain conditions.

By Resumption – The next mode of acquiring Nationality is by resumption. Sometimes a person may lose his nationality because of certain reasons. But later he may resume, recover his original nationality after fulfilling certain conditions. Section 20 of the Citizenship rules 1956 provides a procedure for the restoration of nationality.

By Subjugation – The fourth mode of acquiring nationality is subjugation. Section 7 of the Indian Citizenship Act 1955 Lays down that if any territory becomes a part of India those persons from such territory shall automatically become citizens of India.

By Cession – The fifth mode of acquiring Nationality is the Cession. When a part of the territory of a state is ceded to another State. All Nationals of the former acquires the nationality of the latter State.

By Option – The Sixth mode of acquiring Nationality is by Option. When a state is proportioned into two or more States, the nationals of the former state have an option to become the nationals of any of the successor States. The same principle applies in the case of an exchange of territory.

By Registration – A person may acquire the nationality of a State through Registration. The process of registration may be different from one state to another depending upon the laws of that State. It takes place when a person becomes the subject of a state to which he was before an alien.

Modes of Loss of Nationality

By Release: In some States, such as Germany., Law provides that the citizens may lose their nationality by release. In the loss of nationality by release it is necessary to submit an application for the same. If the Application is accepted, the person concerned is released from the nationality of the State concerned.

Deprivation: The certain States have framed some municipal laws the breach of which by its nationals results in the deprivation of their nationality. Under the American laws, service in the armed forces of a foreign state also results in deprivation of citizenship.

Expiration: In certain States, on account of legislation citizenship expires due to a long stay abroad. A naturalist American citizen loses his nationality by having s continuance residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated.

Renunciation: A person may also renounce his nationality. The need for renunciation arises when a person acquires the nationality of more than one State. In such a condition he has to make a choice as to which country he will remain national. Finally, he has to renounce the nationality of one State. In the case of the double nationality of children, the municipal laws of certain States like Great Britain give them a right on coming of age to declare whether they wish to cease to be citizens of one State.

The British Nationality Act of 1948 permits such a child to make a declaration of the renunciation of citizenship of the United Kingdom, but the registration of such a declaration may be withheld by the Secretary of State if made during any war in which the United Kingdom be engaged.

Substitution: Some States provide for the substitution of nationality. According to this principle, a person may get the nationality of a state in place of the nationality of another State. This is called nationality by substitution whereby he loses nationality of state and acquires the nationality of another State. The British Nationality Act 1948, does not automatically entail the loss of British nationality on the naturalisation of a British subject in a Foreign State. The United States nationality Act of 1952, however, entails the loss of American nationality on the voluntary naturalisation of an American National in a foreign country.

In certain States, law provides that if the national of that State without seeking permission of the government obtain employment in another State, then he may be deprived of his nationality

III. Statelessness

A stateless person is someone who is not recognised as a national by any state. They have no nationality or citizenship and are unprotected by national legislation, leaving them vulnerable in ways that most of us never have to consider. They are often not permitted to attend school or university, may be prohibited from getting married and may not be able to register births and deaths. Stateless people can neither vote nor access the national justice system.

Statelessness may result from various circumstances.

• States may simply cease to exist when individuals fail to get citizenship in their successor states;
• political considerations may dictate changes in the way that citizenship laws are applied;
• unethnic minority may be persecuted by being denied citizenship;
• a group may live in frontier areas and frequently cross borders, causing states on both sides of the border to deny them citizenship.
• Also, there are individuals who become stateless due to personal circumstances, rather than the persecution of a group to which they belong. Statelessness can arise from legal differences between countries, people renouncing one nationality without having acquired another or even, more simply, from failure to register the birth of a child.
• Also, small islands which, condemned by a changing climate to be swallowed by the sea, will see their entire populations become stateless.

Nationality and India

The conferment of a person, as a citizen of India, is governed by Articles 5 to 11 (Part II) of the Constitution of India. The legislation related to this matter is the Citizenship Act 1955, which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, The Citizenship (Amendment) Act, 2005 and Citizenship (Amendment) Act, 2015. Indian nationality law largely follows the “jus sanguinis” (citizenship by right of blood).

Granting of citizenship

Citizenship at the commencement of the constitution of India.

Persons domiciled in the territory of India as on 26 November 1949 automatically became Indian citizens by virtue of the operation of the relevant provisions of the Indian Constitution coming into force, and most of these constitutional provisions came into force on 26 January 1950. The Constitution of India also made provisions regarding citizenship for migrants from the territories of Pakistan which had been part of India before partition.

Citizenship by birth

Any person born in India on or after 26 January 1950, but prior to the commencement of the 1986 Act on 1 July 1987, is a citizen of India by birth. A person born in India on or after 1 July 1987 is a citizen of India if either parent was a citizen of India at the time of the birth. Those born in India on or after 3 December 2004 are considered citizens of India only if both of their parents are citizens of India or if one parent is a citizen of India and the other is not an illegal migrant at the time of their birth.

Citizenship by descent

Persons born outside India on or after 26 January 1950 but before 10 December 1992 are citizens of India by descent if their father was a citizen of India at the time of their birth. Persons born outside India on or after 10 December 1992 are considered citizens of India if either of their parents is a citizen of India at the time of their birth. From 3 December 2004 onwards, persons born outside of India shall not be considered citizens of India unless their birth is registered at an Indian diplomatic mission within one year of the date of birth.

Citizenship by registration

The Central Government may, on an application, register as a citizen of India under section 5 of the Citizenship Act 1955 any person (not being an illegal migrant) if s/he belongs to any of the following categories:

• a person of Indian origin who is ordinarily resident in India for seven years before making application under Section 5(1)(a) (throughout the period of twelve months immediately before making application and for six years in the aggregate in the eight years preceding the 12 months).
• a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
• a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
• minor children of persons who are citizens of India;
• a person of full age and capacity whose parents are registered as citizens of India.
• a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
• a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.

Citizenship by naturalization

Citizenship of India by naturalisation can be acquired by a foreigner (not illegal migrant) who is ordinarily resident in India for 12 years (throughout the period of 12 months immediately preceding the date of application and for 11 years in the aggregate in the 14 years preceding the 12 months) and other qualifications as specified in Third Schedule to the Citizen Act.

Overseas Citizenship of India

The Overseas Citizenship of India (OCI) scheme was introduced by amending The Citizenship Act, 1955 in August 2005. The scheme was launched during the Pravasi Bharatiya Divas convention in Hyderabad in 2006.

Indian authorities have interpreted the law to mean a person cannot have a second country’s passport simultaneously with an Indian one even in the case of a child who is claimed by another country as a citizen of that country, and who may be required by the laws of the other country to use one of its passports for foreign travel (such as a child born in the United States or in Australia to Indian parents), and the Indian courts have given the executive branch wide discretion over this matter.

Therefore, Overseas Citizenship of India is not an actual citizenship of India thus does not amount to dual citizenship or dual nationality or anyone no longer to use Indian IDs after OCI.[10] Moreover, the OCI card is not a substitute for an Indian visa and therefore, the passport which displays the lifetime visa must be carried by OCI holders while travelling to India.[11]

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– Samriddhi Pandey
Gujarat National Law University

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Sources

[1] Article 1 of The Hague Convention of 1930

[2] Article 15 of the 1948 Universal Declaration of Human Rights

[3] (Liechtenstein v. Guatemala) [1955] ICJ 1

[4] Castillo Petruzzi et al v Peru IHRL 1424 (IACHR 1998

[5] (Liechtenstein v. Guatemala) [1955] ICJ 1

[6] Article 6 Fifa Statutes 2015

[7] Siofra O’Leary, The evolving concept of community citizenship-from the free movement of persons to Union citizenship, The Hague: Kluwer Law International, 1996, p.12.

[8] Romano v. Comma (Gazette des Tribunaux Mixtes, 1926, p. 158

[9] O’Leary, The evolving concept of community citizenship from the free movement of persons to Union citizenship, The Hague: Kluwer Law International, 1996, p. 4

[10] Dual Nationality: India and the United States, Available Here

[11] OCI card holders no longer required to carry old passports for India travel, Available Here

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