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CHAPTER 15: NATIONALITY AND STATELESSNESS

Save in certain cases, the individual is merely an object and

not a subject of international law and is thus not directly

governed by its rules.

The individual can participate in international relations only

through the instrumentality of the state to which he

belongs, as when his government asserts a diplomatic claim

on his behalf for injuries he may have suffered in a foreign

jurisdiction. (remedy not available for stateless persons)

Nationality acquires not only municipal but international

significance.

NATIONALITY tie that binds an individual to his state, from

which he can claim protection and whose laws he is obliged

to obey.

-often used interchangeably with citizenship which has a

more exclusive scope in that it applies only to certain

members of the state accorded more privileges than the

rest of the people who also owe it allegiance.

ACQUISITION OF NATIONALITY

Nationality may be acquired by birth (jure soli- acquisition

of nationality of the state where child is born; jure

sanguinis- acquisition of the nationality of childs parents)

or naturalization.

NATURALIZATION may be direct or derivative

DIRECT NATURALIZATION effected by

a. Individual proceedings (under naturalization laws)b. Special act of legislaturec. Collective change of nationality (as result of cession

or subjugation)

d. Adoption of orphan minors as nationals of the statewhere they are born.

DERIVATIVE NATURALIZATION is conferred on:

a. The wife of the naturalized husbandb. Minor children of the naturalized parentc. Alien woman upon marriage to a national

Derivative naturalization is usually made subject to

stringent restrictions and conditions.

MULTIPLE NATIONALITY

An individual may possess more than one nationality.

eg. A child born in the US of Filipino parentage. under jus

soli as prescribed by American Law, child is American

citizen. However, child is also a Filipino citizen under jus

sanguinis as prescribed by the Philippine Law.

DOCTRINE OF INDELIBLE ALLEGIANCE individual may be

compelled to retain his original nationality notwithstanding

that he has already renounced or forfeited it under the laws

of a second state whose nationality he has acquired.

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LOSS OF NATIONALITY

Nationality may be lost voluntarily or involuntarily.

Voluntary methods include:

a. Renunciation (may be expressed)b. Request for release

Involuntary methods are:

a. Forfeiture (as a result of some disqualification orprohibited act)

b. SubstitutionCONFLICT OF NATIONALITY LAWS

To provide against conflicts arising from divergent

municipal laws on nationality, the ff. rules were embodied

in the Hague Convention of 1930 on the Conflict of

Nationality Laws:

Art. 1. It is for each state to determine under its law who

are its nationals

Art. 2. Any question as to whether is a national of a state or

not shall be determined in accordance with the law of the

state.

Art. 3. A person having 2 or more nationalities may be

regarded as its national by each of the states whose

nationality he possesses.

Art. 4. A state may not afford diplomatic protection to one

of its nationals against a state whose nationality such

person also possesses.

Art. 5. Within a third state, a person having more than one

nationality shall be treated as if he had only one. (third

state shall recognize exclusively in its territory either the

nationality of the country in which the person is habitually

and principally residing or the nationality of the country

with which in the circumstances appears to be most closely

connected to him.)

Art. 6. A person possessing 2 nationalities acquired without

any voluntary act on his part may renounce one of them

with the authorization of the state whose nationality he

desires to surrender.

Where a person possesses both Philippine and American

nationality, his claim to Phil. nationality shall be decided on

the basis alone of Phil. law to the exclusion of other laws.

However, where issue of nationality is raised in a third

state, the laws of said state shall be inapplicable as he does

not claim to be a national of that state. Third state shall

apply the principle of effective or active nationality in which

the dual national shall be considered the national

exclusively of the state with which he is most closely

connected.

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CASES:

US v. AUSTRIA AND HUNGARY

Q: could the Austrian government subject Alexander

Tellech, born of Austrian parents in US, to compulsory

military service?

A: action was taken in Austria where claimant is voluntarily

residing and against claimant as an Austrian citizen.

Citizenship is determined by rules prescribed by municipal

law. Under the law of Austria, he was an Austrian citizen. In

possessing dual nationality and voluntarily residing in

Austria, he subjected himself to the duties and obligations

of an Austrian citizen.

CANEVARO CASE

Q: may Italy file a diplomatic claim against Peru on behalf of

Rafael Canavero who is a national of both states under their

respective municipal laws.

A: according to Peruvian laws, Rafael is a Peruvian.

However according to Italian laws, he is an Italian national.

The Government of Peru has the right to consider him

Peruvian and deny his status as an Italian claimant because

he had for several occasions acted as a Peruvian citizen (ran

as candidate for senate and by accepting the office of

Consul General for Netherlands).

NOTTEBOHM CASE

Facts: Nottebohm is a German by birth but had been a

resident of Guatemala for thirty years when he applied for

and acquired naturalization in Liechtenstein one month

before the outbreak of WWII. His family members and

business connection were in Germany. Guatemala,

confiscated all his properties saying that he was an enemy

national.

Q: whether nottebohms naturalization in Liechtenstein

binding on Guatemala.

A: please refer to book. (Di ko rin maintindihan how it

works kaya di ko ma-sum up)

STATELESSNESS - The condition or status of an individual

who is born without any nationality or who loses his

nationality without retaining or acquiring another.

Eg. Child born in a state which only recognizes jus sanguinis

to parents whose states observe only jus soli.

A stateless individual is (from the traditional point of view)

powerless to assert any right that otherwise would be

available to him. Any wrong suffered by him would be

damnum absque injuria for no other state had been

offended and no international delinquency committed as a

result of the damage caused upon him. It is because not a

violation of his own right bu of the right of his state to the

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protection of its nationals; right to complain belongs not to

him but to the state of which he is a national.

Because of the difficulty mentioned, the Hague Convention

of 1930 adopted certain rules calculated to avoid

statelessness and all its attendant inconveniences. The

following are:

a. In case of naturalization, wife and children will retaintheir existing nationality if they are not also

naturalized. Wife will acquire her husbands new

nationality (if permitted) only with her consent.

b. The adopted childs nationality is not lost if he doesnot acquire the nationality of the adopter.

c. Children shall have the nationality of the state oftheir birth parents whenever their parents are:

1. Unknown2. Stateless or of unknown nationality3. Father is stateless or unknown and mother is a

national of the state where they are born.

It doesnt mean that stateless individuals have entirely no

recourse. Under the Covenant Relating to the Status ofStateless Persons (1954), he is entitled to the following

rights:

a. Religion and religious instructionb. Access to courtsc. Elementary educationd. Public relief and assistancee. Rationing of products in short supply

f. Treatment not less favorable than thataccorded to aliens generally.

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