Nationality

Held. By eleven votes to three, Liechtenstein's claim was inadmissible. It is the bond of nationality between the State and the individual that alone confers the right of diplomatic protection. The conferment of nationality is within a State's domestic jurisdiction, but to exercise protection is to place oneself on the plane of international law, and acts done within domestic jurisdiction do not necessarily have international effect. The question was therefore not whether the naturalisation was valid under Liechtenstein law, which the Court declined to examine, but whether it could be relied on against Guatemala. Arbitrators and courts faced with competing nationalities have preferred the real and effective nationality, that which accords with the facts and rests on the stronger factual ties. Nottebohm's connection with Liechtenstein was tenuous and his connection with Guatemala long-standing and close, and the naturalisation had been sought not to associate himself with the population of Liechtenstein but to substitute the status of a neutral for that of a national of a belligerent. It could not therefore be invoked against Guatemala.

Why it matters. It is the source of the genuine link doctrine. A State may confer its nationality on whom it likes, but other States need not recognise a nationality that has no factual foundation, and a claim brought on such a nationality is inadmissible. The same idea reappears at sea in the requirement of a genuine link between a ship and its flag State, in [The High Seas].

The modes of acquiring nationality

Six modes are recognised, and every legal system uses some combination of the first two with the rest as supplements.

By birth

Two competing principles, and their Latin names are asked for.

Jus soli, the law of the soil: a person acquires the nationality of the territory in which he is born. Common in the Americas.

Jus sanguinis, the law of blood: a person acquires the nationality of his parents wherever he is born. Common in Europe and Asia.

Most States mix them, and India is a good example of a State that has moved from one to the other. Section 3 of the Citizenship Act 1955 gives citizenship by birth in India, but the conditions have been tightened three times: for those born on or after 26 January 1950 and before 1 July 1987, birth in India was enough; for those born on or after 1 July 1987 and before the commencement of the Citizenship (Amendment) Act 2003, either parent had to be a citizen at the time of the birth; and for those born on or after that commencement, which the Act's own footnotes date at 3 December 2004, either both parents must be citizens or one must be a citizen and the other must not be an illegal migrant at the time of the birth. Section 3(2) excludes two cases whatever the dates: where a parent has diplomatic immunity and is not an Indian citizen, and where a parent is an enemy alien and the birth occurs in a place under enemy occupation. That is a shift from jus soli towards jus sanguinis, and it is a good illustration for an answer.

By descent

Section 4 gives citizenship by descent to a person born outside India whose parent was a citizen at the time of the birth, subject to registration at an Indian consulate within a prescribed period. This is jus sanguinis in its pure form.

By naturalisation

The grant of nationality to a foreigner who applies and satisfies conditions, usually residence, good character, knowledge of a language and an intention to reside. Section 6 of the Citizenship Act, read with the Third Schedule, sets India's conditions.

Naturalisation is where the Nottebohm problem arises, because it is the mode most easily used to manufacture a nationality of convenience.

By registration

A simpler route than naturalisation, offered to defined classes with an existing connection. Section 5 covers, among others, persons of Indian origin ordinarily resident in India for the prescribed period, persons married to Indian citizens, and minor children of Indian citizens.

By marriage

In older laws a woman took her husband's nationality automatically on marriage. That is now rare and is regarded as discriminatory. Modern statutes, including India's, treat marriage as a ground for eligibility to apply, not as an automatic transfer.

By subjugation, cession or option

When territory changes hands, the population of the transferred territory generally acquires the nationality of the successor State, often with a right of option to keep the old one within a period. This connects to [State Succession].

The modes of losing nationality

By renunciation. Section 8 of the Citizenship Act allows a citizen of full age and capacity who is also a national of another country to make a declaration renouncing Indian citizenship, and minor children lose it with the parent, with a right to resume it within a year of attaining majority.

By termination. Section 9(1) is the provision to know for the next chapter: any citizen of India who by naturalisation, registration or otherwise voluntarily acquires the citizenship of another country ceases upon that acquisition to be a citizen of India. There is a proviso suspending the rule during a war in which India is engaged, until the Central Government directs otherwise. Section 9(2) leaves the determination of whether, when and how another citizenship was acquired to a prescribed authority.

By deprivation. Section 10 allows the Central Government to deprive a citizen of citizenship in defined cases, and it applies only to citizens by naturalisation or registration, or by virtue of certain constitutional provisions, and not to citizens by birth. The five grounds in section 10(2) are that the registration or certificate of naturalisation was obtained by fraud, false representation or concealment of a material fact; that the citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution; that he has, during a war in which India is engaged, unlawfully traded or communicated with an enemy or assisted one in business; that he has within five years after registration or naturalisation been sentenced in any country to imprisonment for not less than two years; and that he has been ordinarily resident outside India for a continuous period of seven years without, during that period, being a student abroad, in the service of a Government in India or of an international organisation of which India is a member, and without registering annually at an Indian consulate his intention to retain his citizenship.

Two safeguards sit on top of those grounds and are easy marks. Under section 10(3) the Central Government may not deprive a person unless it is satisfied that it is not conducive to the public good that he should continue to be a citizen. Under sections 10(4) to 10(6) it must give written notice of the ground, and on any ground except the seven-year residence ground the person may require the case to be referred to a Committee of Inquiry chaired by someone who has held judicial office for at least ten years, with two other members.

By long residence abroad, in some legal systems, and by substitution when a new nationality is acquired, which is what section 9 does.

Nationality of things that are not people

The word is used of ships, aircraft and corporations, and each has its own rule.

Ships have the nationality of the State whose flag they fly, and article 91 of the Convention on the Law of the Sea requires a genuine link between the State and the ship. This is [The High Seas].

Aircraft have the nationality of the State of registration, under article 17 of the Chicago Convention, in [International Air Law].

Corporations have, for most purposes, the nationality of the State of incorporation and of the registered office, and the question of who may protect a company and its shareholders is dealt with in [Treatment of Aliens and Diplomatic Protection].

A worked example

Mr T is born in Mumbai on 1 January 2006. His father is an Indian citizen and his mother holds a foreign passport but is lawfully resident in India. At twenty-two Mr T takes a job in State V and, after five years, accepts State V's offer of naturalisation. Two years later State V's police detain and beat him.

Was he an Indian citizen at birth? Yes. He was born after 3 December 2004, so section 3 required one parent to be a citizen, which the father was, and the other not to be an illegal migrant, which the mother was not.

What happened when he took State V's nationality? Section 9(1) applied automatically. By voluntarily acquiring the citizenship of another country he ceased upon that acquisition to be a citizen of India, and no order or hearing was needed.

Who can now protect him? State V, if anyone. India cannot, because he is no longer its national. But State V is the very State that injured him, and the general rule is that a State cannot exercise diplomatic protection against a State of which the injured person is also a national, still less against itself. In practice his remedy is State V's own courts and, if State V has accepted the procedure, a human rights body.

Would the answer change if State V's naturalisation had been a paper transaction with no residence and no ties? For India, no: section 9 turns on the fact of voluntary acquisition, not on its quality. For international law, possibly: on the Nottebohm reasoning another State could decline to recognise a nationality with no genuine link. The two systems can therefore give different answers to the same question, which is the point the chapter has been building towards.

Distinctions that carry marks

What it does NOT mean

A passport is not nationality. A passport is evidence of nationality and a request to allow the bearer to pass. It can be issued in error and it can be withheld from a national.

Domicile is not nationality. Domicile is a connection with a legal system for the purposes of private international law, chiefly succession and family law. A person can be an Indian national domiciled in England.

Nationality is not race, language or religion. Nationality here is a legal bond with a State. The word is used in ordinary speech for ethnic identity and that usage has no place in this answer.

The genuine link does not invalidate a nationality. Nottebohm did not hold that Nottebohm was not a national of Liechtenstein. It held that Liechtenstein could not use that nationality to bring a claim against Guatemala. The nationality remained good for every other purpose, including in Liechtenstein itself.

Limits and criticism

Nottebohm is narrower than students are taught. The Court dealt with a naturalisation obtained during a war for the express purpose of changing a belligerent status into a neutral one, and it repeatedly confined itself to the admissibility of Liechtenstein's claim against Guatemala. Read as a general requirement that every nationality must have a genuine link before any other State need respect it, the case would make millions of ordinary naturalised citizens vulnerable, and later practice, including the International Law Commission's work on diplomatic protection, has not read it that way.

The domestic-jurisdiction rule has costs. Because each State decides who its nationals are, and no State is obliged to grant nationality to anyone, statelessness can be created by legislative accident and nobody is obliged to cure it. That is the subject of the next chapter.

Investment citizenship strains the doctrine. Several States now sell nationality for a payment, with residence requirements that are nominal or absent. That is Nottebohm's problem in a modern form, and the law has not settled it.

Quick revision

Nationality is the legal bond between an individual and a State, and it is what entitles that State to exercise diplomatic protection for him.

Each State decides by its own law who its nationals are, but Nottebohm (ICJ Reports 1955, page 4) held that a nationality without a genuine link cannot be invoked against another State: the Court prefers the real and effective nationality, that which accords with the facts.

Modes of acquisition: birth (jus soli, place; jus sanguinis, blood), descent, naturalisation, registration, marriage, and subjugation or cession with a right of option.

Indian law: section 3 citizenship by birth, narrowed in 1987 and again on 3 December 2004; section 4 by descent; section 5 by registration; section 6 by naturalisation with the Third Schedule conditions; section 6A for the Assam Accord; section 6B inserted by Act 47 of 2019.

Modes of loss: section 8 renunciation, section 9(1) termination on voluntarily acquiring another citizenship, section 10 deprivation, which reaches only citizens by naturalisation or registration and never a citizen by birth.

Distinguish nationality from passport, from domicile and from ethnic identity.

Test yourself

1. Define nationality and say what turns on it in international law.

Nationality is the legal bond by which an individual is a member of a State and owes it allegiance. Three things turn on it: only the State of nationality may exercise diplomatic protection for the individual; a State may legislate for its nationals abroad under the nationality principle of jurisdiction; and a State must admit its own nationals and cannot expel them.

2. State the facts and holding of Nottebohm.

Nottebohm was a German national who lived and did business in Guatemala from 1905. In October 1939, a month after the war began, he obtained naturalisation in Liechtenstein with the residence requirement waived, and returned to Guatemala. Liechtenstein later claimed against Guatemala for its treatment of him. The Court held the claim inadmissible: conferring nationality is a matter of domestic jurisdiction, but exercising protection places the State on the international plane, and a nationality may be invoked against another State only where it reflects a genuine connection. His ties with Liechtenstein were tenuous and with Guatemala close, and the naturalisation was sought to exchange a belligerent status for a neutral one, so it could not be relied on against Guatemala.

3. Distinguish jus soli from jus sanguinis and say which India follows.

Jus soli confers nationality by place of birth; jus sanguinis confers it by descent from a national parent. India began with a broad jus soli in section 3 of the Citizenship Act 1955, then required one parent to be a citizen for births on or after 1 July 1987, and for births on or after 3 December 2004 requires one parent to be a citizen and the other not to be an illegal migrant. India therefore now applies a qualified jus soli heavily conditioned by descent, alongside a full jus sanguinis rule in section 4.

4. In what circumstances can an Indian citizen be deprived of citizenship, and who is protected from deprivation?

Section 10 of the Citizenship Act 1955 permits deprivation for obtaining citizenship by fraud, false representation or concealment of a material fact; disloyalty by act or speech towards the Constitution; unlawfully trading or communicating with an enemy in wartime; being sentenced in any country to imprisonment for not less than two years within five years after registration or naturalisation; and ordinary residence outside India for a continuous period of seven years without the exceptions and the annual registration that clause (e) requires. Section 10(3) adds that the Government must be satisfied that continued citizenship is not conducive to the public good, and sections 10(4) to 10(6) give a right to notice and, except on the residence ground, to a Committee of Inquiry. It applies only to citizens by naturalisation or registration and by virtue of certain constitutional provisions. A citizen by birth cannot be deprived under section 10 at all.

5. "The genuine link requirement makes a State's grant of nationality reviewable by other States." Is that right?

Not as stated. Nottebohm did not hold the naturalisation invalid, and the Court expressly declined to examine its validity under Liechtenstein law. What it held was that Liechtenstein could not invoke that nationality against Guatemala for the purpose of a claim. So other States are not reviewing the grant; they are declining to give it a particular international effect. Read more widely, the doctrine would unsettle the position of very large numbers of ordinary naturalised citizens, and later practice has not read it that way.

6. Mr A, an Indian citizen by birth, takes the citizenship of State B by naturalisation while working there. He does not tell anyone in India. What is his status?

He ceased to be an Indian citizen at the moment of acquisition, by force of section 9(1) of the Citizenship Act 1955, which operates automatically on voluntary acquisition of the citizenship of another country and requires no order. His silence is irrelevant to the result, though any question about whether, when or how he acquired the other citizenship falls to be determined under section 9(2) by the prescribed authority in the prescribed manner. India cannot thereafter exercise diplomatic protection for him, because he is no longer its national.