Page 110 - Law of Peace, Volume ,

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CHAPTER 6
NATIONALITY

6-1. Introduction. a. A basic feature of today's system of the international system, it is possible for an individual to
nation states is the relative helplessness of the individual. be designated a national and thus have "dual nationality"
At birth he finds himself a member of some political in- or even "multiple nationality." Indeed, there are circum-
stitution (typically a "state" in the international system) stances under which he may have no nationality at all and
which, more or less, protects him from the violence of thus be "stateless."
other individuals and groups of individuals. In the d. From the perspective of the international legal
domestic legal system of that state, its police and courts system, several important questions arise:
may offer protection from harm inflicted within the state; (1) Is a state free to set its own standards for confer-
while its army may protect him from harm caused by ag- ring its nationality upon an individual, or does interna-
gression from outside the state. If the individual steps out- tional law set some minimum standard?
side "his" state and is injured by someone in another (2) What is the significance of nationality as a base
state, he is largely on his own. He must look for redress, if for the state's requiring the performance of obligations by
any, in the courts of that other state. Doctrines of an individual? For example, can the state draft into its
sovereign immunity may bar him from redress for injuries army someone who is not its national?
caused by that state. However, as a last resort, the in- This chapter will explore these and other related ques-
dividual must appeal to his own state's government to tions.
help him. If it chooses, it may come to his aid by espous- 6-2. Nationality as a Concept of Municipal Law. a. The
ing a claim against the wrongdoing state through diplo- law of conflicts in nationality matters. Many municipal
matic channels (or possibly through arbitration or through statutes and court decisions fall obviously into the catego-
judicial means such as the International Court of Justice). ry of "municipal law of nationality," for no consideration
b. For the protection it offers him at home and the pro- of any law other than that imposed by a sovereign in its
tection it may afford him against foreign injuries, the state unilateral dealings with individuals is involved. In other
demands obligations of the individual in return: to obey its instances, the municipal character of the legal considera-
laws, to pay its taxes, to help to defend it against aggres- tion is not so obvious, for the consideration may involve
sion. The physical fact of an individual's presence within a principles of nationality belonging to foreign states and
state has been the major basis from which the state exerts contrary to the generally applicable law of the forum. This
its power to protect the individual and to demand his situation results not from municipal application of interna-
allegiance. However, the processes of history have tional law, but rather, from application of the rules of con-
developed legal relationships between the state and the in- flicts of the law, whereby the law of the forum embraces a
dividual that do not depend solely upon his physical pres- principle of foreign municipal law. There is a special
ence in the territory of the state. The state has a special branch of conflict of laws, dealing with nationality, con-
relationship to those it designates as its "nationals." In cerned with determining whether certain rules of foreign
broad and inexact terms, the state's nationals are entitled law, on which the existence, acquisition or loss of na-
to greater rights than nonnationals (e.g., in states with tionality may depend, will be given effect. For instance,
voting systems, the national is permitted to vote, the non- the acquisition or loss of the nationality of a particular
national is not); the state is more ready to demand that country may be dependent on the absence or presence,
the national perform obligations (e.g., the national may be loss or acquisition of a foreign nationality. 2 In this situa-
subject to laws prescribed by his state even though he is tion the municipal law of the forum is not applied. Instead,
not physically present in its territory). 1 a substantive principle of foreign law is applied by the
c. The practices of states in creating the class of people forum. This process does not involve any concept of inter-
upon whom they confer nationality vary widely. Some national law. It is the result of ordinary conflicts of law
states accord nationality to individuals born within the ter- rules, as the foreign law applied has become the law of the
ritory; this right of nationality is referred to as jus soli. forum in the case at hand.
Some states accord nationality at birth only to individuals b. There is a second situation in which a casual ob-
born of parents who are already nationals; this right of na- server might mistake the operation of municipal law of na-
tionality is referred to as jus sanguinis. An increasing tionality for that of international law. This is when resort
number of states recognize both bases. In addition to ac- has been made to international law as a guide in formulat-
cording nationality based upon facts associated with birth, ing municipal law. For example, the International Claims
states afford "naturalization" processes by which in- Settlement Act of 1949 3 provides:
dividuals may apply for and be granted nationality. As a
result of such a variety of bases for nationality existing in 2. Silving, Nationality in Comparative Low, 5 Am. J. Comp. L.
410, 416 (1956).
1. See the discussion on jurisdiction, chapter 4, supra. 3. 64 Stat. 13, as amended, 22 U.S.C. 4 1621 (1958).