Double Nationality and Statelessness

The problems double nationality creates

An examiner asks what is actually wrong with holding two passports. Five things.

Competing diplomatic protection. If A is a national of both State X and State Y and is injured by State Z, both X and Y may wish to claim, and Z faces two claimants for one injury.

Protection against the other State of nationality. This is the sharper problem. May State X claim against State Y on behalf of a person who is a national of both? The older rule said no, on the ground that the two claims cancel out. The modern rule, reflected in the International Law Commission's work on diplomatic protection, is that X may claim against Y where X's nationality is predominant, which is the Nottebohm idea applied to a different question.

Double military service. Both States may claim the person's compulsory service, and performing it for one may be treason to the other.

Double taxation and conflicting allegiance, resolved in practice by tax treaties rather than by nationality law.

Conflicting obligations in wartime. A dual national of two belligerents is in an impossible position, and the Nottebohm facts show what people do about it.

How international law handles them

The dominant and effective nationality

The working solution is not to deny that a person has two nationalities but to ask which one counts for the purpose in hand.

That is the doctrine of the dominant and effective nationality, and its clearest statement is the passage in the [Nationality] chapter from the Nottebohm case: where two States have conferred their nationality on the same individual and the situation extends beyond the domestic jurisdiction of either, arbitrators and courts have preferred the real and effective nationality, that which accords with the facts and rests on stronger factual ties.

The factors are habitual residence, the centre of family and business life, participation in public life, attachment shown for a country and inculcated in children, and the place where taxes are paid and duties performed.

The treaties

The Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, 1930 is the classical instrument, and four of its articles are worth knowing by number.

Article 1 states the position this whole chapter turns on: it is for each State to determine under its own law who are its nationals, and this law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality. That second sentence is the treaty ancestor of the genuine-link reasoning in Nottebohm.

Article 3 accepts double nationality rather than denying it: a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses.

Article 4 contains the rule about claims: a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.

Article 5 supplies the answer for everybody else: within a third State, a person having more than one nationality shall be treated as if he had only one, and that third State shall recognise exclusively either the nationality of the country in which he is habitually resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. That is the dominant and effective nationality test, written into a treaty twenty-five years before Nottebohm.

The Convention relating to the Status of Stateless Persons, 1954 defines a stateless person as one who is not considered as a national by any State under the operation of its law, and gives such persons a status, identity papers and travel documents.

The Convention on the Reduction of Statelessness, 1961 obliges contracting States to grant nationality to a person born in their territory who would otherwise be stateless, and restricts deprivation of nationality where it would produce statelessness.

India is a party to none of the three. That is a fact worth stating in an answer rather than glossed over, and it is why the Indian discussion below runs on Indian statute alone.

India's position: no dual citizenship

India does not permit dual citizenship, and it says so twice.

Article 9 of the Constitution provides that no person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.

Section 9(1) of the Citizenship Act 1955 carries the rule forward beyond the commencement of the Constitution: any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between 26 January 1950 and the commencement of the Act voluntarily acquired, the citizenship of another country shall upon that acquisition cease to be a citizen of India. There is a proviso: the sub-section does not apply to a citizen of India who during any war in which India may be engaged voluntarily acquires the citizenship of another country, until the Central Government otherwise directs. Section 9(2) leaves the question whether, when and how another citizenship was acquired to be determined by a prescribed authority in a prescribed manner and on prescribed rules of evidence.

Two points about the operation of section 9 are worth writing down.

It is automatic. The Indian citizenship ends at the moment of voluntary acquisition. No order is made and no hearing is held, which is what distinguishes it from deprivation under section 10, where an order, a notice and in most cases a Committee of Inquiry are required.

It turns on voluntariness. A nationality conferred by operation of another State's law without any act of the individual is not voluntarily acquired.

Overseas Citizenship of India

Because the pressure for dual citizenship from the Indian diaspora was real, Parliament created something that is deliberately not citizenship. Sections 7A to 7D of the Citizenship Act provide for registration as an Overseas Citizen of India Cardholder.

The name is misleading and the misdirection is the exam point. An OCI cardholder is a foreign national. The card gives a lifelong visa and certain parity with non-resident Indians in economic and educational matters, and it does not give the political rights that define citizenship: no right to vote, no eligibility for public office, no eligibility for public employment, and no right to acquire agricultural land. Section 7D allows the Central Government to cancel registration on stated grounds.

So India's answer to double nationality is to give the practical benefits people wanted while withholding the status, and a candidate who writes that India permits dual citizenship through the OCI card has made the error the provision was drafted to invite.

A worked example

Ms N is born in India in 1990 to Indian parents, so she is an Indian citizen by birth under section 3. She moves to State W for work at twenty-five, and at thirty-five she is naturalised there. She keeps her Indian passport and continues to use it when she visits her parents. At forty she is arrested and mistreated by the police of State Z while on holiday there.

Is she still an Indian citizen? No. Section 9(1) ended her Indian citizenship at the moment she was naturalised in State W, automatically. Continuing to hold and use an Indian passport does not preserve the status; the passport has simply become invalid, and using it knowingly is an offence.

Can India protect her against State Z? No, because she is no longer an Indian national and the right of diplomatic protection follows nationality.

Can State W protect her against State Z? Yes. She is its national and no competing nationality now exists.

Change the facts: suppose State W's law had made her a national at birth by descent through a grandparent, without any act of hers. Then she would be a dual national from birth, and section 9(1) would not have operated, because nothing was voluntarily acquired. India and State W could both wish to claim against State Z, and the question of which claim prevails, or whether both proceed, would be answered by asking which nationality is dominant and effective on the Nottebohm factors: habitual residence, the centre of her life, and the attachment she has shown.

Change them again: suppose it is State W itself that mistreats her. Now India would be claiming against the other State of her nationality. Under the 1930 Hague Convention's rule a State may not protect a national against a State whose nationality that person also possesses. The modern position is more flexible and permits the claim where the claimant State's nationality is predominant, and an answer that gives both positions and says which is modern will score better than one that gives only the older rule.

Distinctions table

What it does NOT mean

An OCI cardholder is not a citizen. No vote, no public office, no public employment, no agricultural land, and the registration can be cancelled under section 7D.

Statelessness is not the same as being a refugee. A refugee has a nationality and cannot or will not seek his State's protection because of a well-founded fear of persecution. A stateless person has no nationality at all. Many people are both, and the two categories are governed by different conventions.

Losing Indian citizenship under section 9 is not deprivation under section 10. Section 9 is automatic and applies to every citizen, including a citizen by birth. Section 10 requires an order and applies only to citizens by naturalisation or registration and by virtue of certain constitutional provisions.

Holding two passports does not by itself prove double nationality, and it usually proves that one of them should have been surrendered.

Limits and criticism

The world is moving the other way from India. A large and increasing number of States now tolerate dual nationality, on the view that it reflects how people actually live and that the old objections, chiefly military service and allegiance, have weakened. The Indian rule is a policy choice and can be defended, but an answer that presents it as the universal rule is wrong.

The 1961 Convention has few parties, so the strongest legal answer to statelessness binds a minority of States. The practical work is done by national law reform and by birth registration campaigns, not by international obligation.

The dominant nationality test is unpredictable. It asks a court to weigh residence, family, business and attachment with no fixed weights, which produces a defensible answer in a clear case and very little guidance in a close one.

Quick revision

Both problems come from one fact: every State writes its own nationality law and none is obliged to coordinate.

Double nationality arises from conflicting jus soli and jus sanguinis, from descent from parents of different nationalities, from naturalisation without renunciation, from marriage under older laws, and from transfers of territory.

Statelessness arises from the mirror gap, from deprivation, from failed acquisition, from State succession, and in practice most often from unregistered births.

The solution to double nationality is the dominant and effective nationality, the Nottebohm test: habitual residence, centre of family and business life, participation in public life, attachment shown.

Treaties: the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws 1930, the Convention relating to the Status of Stateless Persons 1954, and the Convention on the Reduction of Statelessness 1961. India is a party to none of them.

India permits no dual citizenship: article 9 of the Constitution and section 9(1) of the Citizenship Act 1955, which operates automatically on voluntary acquisition. Sections 7A to 7D create the Overseas Citizen of India Cardholder, who is a foreign national with a lifelong visa and no political rights.

Test yourself

1. Explain how a person can come to hold two nationalities at birth, and why international law tolerates it.

Because States apply different principles. A child born in a State that follows jus soli, the law of the soil, to parents who are nationals of a State that follows jus sanguinis, the law of blood, acquires both nationalities at the moment of birth, and neither State has done anything irregular. International law tolerates it because the alternative would be to tell States whom they may treat as their nationals, which cuts against the settled rule that nationality is a matter for each State's own law.

2. May State A exercise diplomatic protection for a person who is a national of both A and B, against B?

Under the classical rule, no: article 4 of the 1930 Hague Convention provides that a State may not afford diplomatic protection to one of its nationals against a State whose nationality that person also possesses. The modern position, reflected in the International Law Commission's work on diplomatic protection, allows the claim where the claimant State's nationality is predominant, both at the date of injury and at the date of the claim. The test of predominance is the Nottebohm test of real and effective nationality.

3. Distinguish section 9 from section 10 of the Citizenship Act 1955.

Section 9 terminates citizenship automatically on the voluntary acquisition of the citizenship of another country. It needs no order, no notice and no hearing, and it applies to every citizen including a citizen by birth. Section 10 is deprivation by order of the Central Government on five stated grounds, it requires that the Government be satisfied that continued citizenship is not conducive to the public good, it requires written notice of the ground, and on every ground except long residence abroad the person may require a Committee of Inquiry. It applies only to citizens by naturalisation or registration and by virtue of certain constitutional provisions.

4. Is an Overseas Citizen of India a citizen of India? Give reasons.

No. Registration under sections 7A to 7D makes the holder a cardholder, not a citizen, and he remains a foreign national. The card confers a lifelong visa and parity with non-resident Indians in specified economic and educational matters. It confers none of the political incidents of citizenship: no right to vote, no eligibility for public office or public employment, and no right to acquire agricultural land. Section 7D permits cancellation of the registration. The name of the scheme invites the error, and the error is the point of the question.

5. What is statelessness, and what does international law do about it?

A stateless person is one who is not considered a national by any State under the operation of its law, which is the definition in the 1954 Convention relating to the Status of Stateless Persons. That Convention gives such persons a status, identity papers and travel documents. The 1961 Convention on the Reduction of Statelessness requires contracting States to confer nationality on a person born in their territory who would otherwise be stateless, and restricts deprivation that would cause statelessness. Both bind only their parties, and India is a party to neither.

6. "India's refusal to allow dual citizenship is out of step with international practice." Discuss briefly.

It is out of step in the descriptive sense: a large and growing number of States now tolerate dual nationality, on the view that it matches how people live and that the classical objections, chiefly competing military service and divided allegiance, have lost much of their force. India's position rests on article 9 of the Constitution and section 9(1) of the Citizenship Act and is a deliberate policy choice, softened in practice by the Overseas Citizen of India card, which supplies the economic benefits people sought while withholding political rights. Whether that is the right balance is arguable; what is not arguable is that the rule is a choice rather than a requirement of international law, which leaves nationality to each State.