Discuss about the concept, determination of Nationality and modes of acquiring Nationality

In simple words “nationality” is the condition or status of belonging to a Nation or State.1 The
term "nationality" is a generalization inferred in any given legal system from the connection of
certain hypothetical facts (e.g., birth within a certain territory or descent from a certain parent)
as legal conditions, with certain legal consequences (e.g., suffrage, military duty) attaching
rights or duties to such conditions. The sum total of all such conditions and consequences
defines the concept of "nationality"2

Hence, nationality is the affiliation to particular nation or sovereign state. The emergence of
concept of nationality is parallel to the emergence of nation states. Before, the world was
divided into nation states with sophisticated boundaries; humans lived in tribal group.
Consolidation of tribes and substitution of territorial bonds for ties of kinship lead to affiliation
to a particular tribe and hence the primitive conception of nationality emerged. Consolidation
of tribes happened on lines of common origin and language and was a result of conquest. An
instance of the same was the emergence of Poles (as a group) from the merging of Slavic tribes
like Polanians, Vistulians and Manzoviants.3 There were also instances where tribes with
different languages would also give rise to single nationality; for instance, French developed
from Gallic tribes, Roman colonist and German Tribes. 4At times the distinct languages would
merge and give rise to a single language. At times the most developed language or the language
of the majority would become the common language.

However, this conception of nationality which bases the same on cultural components and
divorces it from the territorial element is often confused with ethnicity. For instance, Kurds
would qualify as nationality even though no Kurdish state exists. Hence, the modern conception
of nationality, post the emergence of sovereign states has a territorial nexus over and above the
common cultural aspect. In other words, nationality can no longer be determined as a personal
relationship of allegiance, but rather as a legal status embracing a set of mutual rights and
obligations towards a political entity fulfilling certain requirements necessary for the existence
of a sovereign state.5

1
SR MYNENI, CITIZENSHIP AND EMIGRATION LAW, 52 (1st Ed. 2018)
2
Helen Silving, Nationality in Comparative Law, 5 AM. J. COMP. L. 410 (1956)
3
Supra note 1 at Pg 54
4
Ibid
5
Helen Silving, Factors which Determine Nationality, 26 REV. JUR. U.P.R. 217 (1957)
The determination of nationality is based on this conception of nationality. The modern
conception of nationality falls within the domain of municipal law and not international law,
as there exists a jural relationship between a State and its national. Moreover, due to territorial
nexus, nationality is not a natural right. This position is accepted under the international law as
well; as per established international convention it is left to the states to decide who are
nationals under its own law, as long as it is consistent with international convention,
international customs and principles generally recognized with regard to nationality.

In light this variance as to the determination of nationality from state to state. The mode of
acquisition also varies. However, as already stated above, there are some generally accepted
principles on basis of which nationality may be acquired. Accordingly, as per Oppenheim there
are five modes of acquiring nationality. They are-

1. Nationality by Birth

As the name suggest, this mode of acquisition is based on the incidence of birth. This is the
mode common and important method of determination of nationality. It may be according to
jus soli (right of soil) i.e. the territory or locality of birth within the jurisdictional limits of a
State. Under such an acquisition the nationality of the parents is irrelevant. For instance, if a
child is born in USA to Indian parents then irrespective of the nationality of the parents the
Natichild would be an American national by the operation of the principle of jus soli.

Acquisition of nationality at birth may also be an operation of the nationality of parents; this
principle is called jus sanguinis (right of bloodline). Accordingly, the child acquires the
nationality of one or both of his parent. Initially, only the father was able to pass his nationality
to the so; however, with the advent of feminist thought even the mother can pass her nationality
to the child. For instance, a child born to American parents in India would still be an American
national.

Section 3 of the Indian Citizenship Act 1955 had provided nationality on the basis of birth.

2. Nationality by Naturalization

This mode of acquisition of nationality takes place when a person becomes subject of a state
to which he was an alien before. It is an artificial tie of allegiance between the person and the
state.6 There are numerous ways of naturalization-

6
Supra Note 1
  Naturalization by marriage

When two persons from different nationality marry then one person can assume the nationality
of the other. Due to prevailing social construct and historical discrimination. It is usually the
women who acquires the nationality of her spouse.7

 Naturalization by legitimation

This sort of acquisition of nationality occurs when an illegitimate child acquires the nationality
of his father. This place the child born out of a wedlock on the same legal position as a child
born within a wedlock.

 Naturalization at option

When one state is partitioned into two states, the nationals of the former state have the option
to acquire the nationality of any of the two states.8 Based on their decision they acquire the
nationality of that state; an example of the same would be when India was partitioned into two
India and Pakistan the nationals of India had the option to become national of either of the two
independent states.

 Naturalization by acquisition of domicile

Domicile means a person’s permanent abode. Generally, if an alien has been residing in a
country for a specified period of time (differs from state to state) then he becomes eligible to
acquire the nationality of that state.

 Naturalization by appointment as a Government official

Some states bestow nationality on aliens so that they can add value to the society. This is
usually done with respect to specialized professionals like Doctors, Engineers and Scientist.

It is pertinent to note that naturalization is permissible only when an alien applies for it and it
is based on the discretion of the state authorities. In India the same is governed by Section 6 of
Indian Citizenship Act 1955 which provides for procedure to acquire nationality by
naturalization

7
1 HARALD WALDRAUCH, ACQUISITION AND LOSS OF NATIONALITY ACQUISITION OF NATIONALITY:
COMPARATIVE ANALYSES BOOK SUBTITLE: POLICIES AND TRENDS, 120 (Rainer Bauböck, Eva Ersbøll, Kees
Groenendijk, Harald Waldrauch 1st Ed 2006)
8
Ibid at Page 121
 3. Nationality by reintegration and resumption

An individual may have lost the nationality of his both due to any of the factors listed herein.
In such a situation he/she can resume the nationality of his birth by following certain
conditions. These conditions vary from state to state. Such mode of acquiring nationality is
called reintegration or resumption. Section 20 of the Citizenship rules 1956 provides a
procedure for restoration of nationality.

4. Nationality by Subjugation

When a state acquires a territory from another state then as a consequence of such annexation
all the inhabitants of that territory would acquire the nationality of the acquiring nation. For
instance, in 1867 upon purchase of Alaska from Russia, all the inhabitants of Alaska acquired
American nationality.

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 acquire Indian nationality

5. Nationality by cessation

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.

This note lays down the basic concept with respect to different aspects of nationality. However,
it is pertinent to note that the concept of nationality is never the same in any two legal systems.
Moreover, these principles just govern nationality of natural persons. Even artificial persons
like corporation have nationality which is of immense importance in the modern world due to
taxation and other compliances. The nationality of corporations is determined by the territorial
limits of its establishment and the place from where it is controlled.
Discuss the understanding, principles and basis of state jurisdiction

State jurisdiction is the capacity of a State under International Law to prescribe and enforce the
rules of law.9 It is the authority of a State over persons, property and events which are primarily
within its territories (its land, its national airspace, and its internal and territorial water). It
involves the powers to prescribe the rules of law, to enforce the prescribed rules of law and to
10
adjudicate. This brings forth three aspects of state jurisdiction- i.e. legislative, judicial and
executive.

The basis of state jurisdiction is found in the concept of state sovereignty. Principle of state
sovereignty forms the basis of International Law. Sovereignty is the full right and power of a
state over itself without any interference from outside sources or bodies. 11 This includes its
territory and its citizens. It is an essential feature of modern states. State jurisdiction is based
on this principle of state sovereignty as well as reinforces the same; this is because not only it
clarifies the scope of operation of state power it also limits it.

However, despite the immense importance attached to state jurisdiction; it is a nebulous

concept. States have historically tried to expand their jurisdiction in a bid to expand their
authority; as a result of this over a period of time certain principles of state jurisdiction were
developed. They are as follows-

1. The Territorial Principle

It means that a State has the primary jurisdiction over all events taking place in its territory
regardless of the nationality of the person responsible.12 All other State must respect the
supremacy of the State over its territory, and consequently must not interfere neither in its
internal affairs nor in its territorial jurisdiction.

The territorial jurisdiction of State extents over its land, its national airspace, its internal
water, its territorial sea, its national aircrafts, and its national vessels. It encompasses not only
crimes committed on its territory but also crimes have effects within its territory. In such a
case a concurrent jurisdiction occurs, a subjective territorial jurisdiction may be exercised by

9
MALCOM N SHAW, INTERNATIONAL LAW, 251 (7th Ed 2016)
10
CEDRIC RYNGAER, JURISDICTION IN INTERNATIONAL LAW (2nd Ed 2015)
11
Samantha Besson, Sovereignty, Max Planck Encyclopedia of Public International Law (2015)
12
Supra Note 9 at Page 253
the State in whose territory the crime was committed, and an objective territorial jurisdiction
may be exercised by the State in whose territory the crime had its effect.13

2. The Nationality Principle

The nationality principle implies that a State jurisdiction extends to its nationals and actions
they take beyond its territory.14 It is based upon the notion that the link between the State and
its nationals is personal one independent of location. Criminal jurisdiction based on the
nationality principle is universally accepted. A State may prosecute its nationals for crimes
committed anywhere in the world; the ground of this jurisdiction is known as active nationality
principle.15 Also, it may claim jurisdiction for crimes committed by aliens against their
nationals abroad; the ground of this jurisdiction is known as passive nationality principle.16This
is viewed as a secondary basis for jurisdiction; however, in recent years this principle has come
to be much acceptable by the international community in the sphere of terrorist and other
internationally condemned crimes.17

3. The Protective principle

The protective principle implies that a State may exercise jurisdiction over an alien who
commits an act outside its territory, which is deemed prejudicial to its security and interests.18
Although, this principle had universal applicability, its implementation is marred by many
practical difficulties. This principle has more scope for abuse and is at times used to undermine
another state’s jurisdiction. In practice however, this principle is applied in those cases where
the acts of the person which take place abroad constitute crimes against the sovereignty of the
State, such as plots to through a government, treason, espionage, forging a currency, economic
crimes and breaking immigration laws and regulations.19 This principle is often used in treaties
providing for multiple jurisdictional grounds with regard to specific crimes, such as the 1979
Hostage Convention and the 1970 Hague Aircraft Hijacking Convention.20

4. The Universality Principle

13
Supra Note 10
14
Supra Note 9 at Page 253
15
Ibid
16
Ibid
17
Supra Note 10
18
Supra Note 9
19
Supra Note 10
20
Ibid
A State can claim jurisdiction over certain crimes committed by any person anywhere in the
world, without any required connection to territory, nationality or special State interest.21 This
principle gained prominence after the Second World War, as the war atrocities lead to certain
actions like genocide, slave trade and piracy being recognized as crimes against humanity. In
recent years, crimes such as Hijacking of aircraft, violation of human rights and terrorism, have
been added to the list of international crimes.

It is important to note that state jurisdiction is not without limits. There are several customary
limitations on the absolute exercise of state jurisdiction. This is found in the several immunities
like sovereign immunity, diplomatic immunity and immunity to international organization.
Despite these limitations, it is pertinent to note that the concept of state jurisdiction is important
because it provides the theoretical basis for the modern sovereign states to enforce its
obligations towards its citizen. Citizenship equips a person with a certain set of rights and
obligations towards the state; a basic obligation of the state which arises from the covenant of
citizenship is to provide protection to its citizens. The same is achieved on the basis of
Nationality and Protective Principle.

21
Supra Note 9