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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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