Jurisdiction Based On Nationality (Public International Law)
JURISDICTION BASED ON NATIONALITY.
In law, nationality refers to the membership of a nation or a sovereign state in addition to the political rights and other privileges accompanied with it. E.g., American Indians were referred to as non-citizen nationals before the Native American Citizenship of 1924 was passed. Often confused with citizenship, nationality is a different concept. Individual persons, corporations, ships and aircrafts, all have a nationality, but for legal purposes only.
The UNs Universal Declaration of Human Rights (1948) stated that nationality is an inalienable right of every human being, and no one shall be deprived of his/her citizenship. It is nationality which brings all the individuals under the purview of international laws.
Main theories related to Nationality.
Active Nationality Theory
Generally deemed non-controversial, it states that a state enjoys the right to exercise its jurisdiction over its nationals, even when they are in a foreign territory. When obeying private international laws (The obligations of a nation with respect to other countries), the national laws always tend to follow an individual beyond the boundaries as far as his personal status is concerned. Hence, the court must compulsorily follow international laws, at the same time make sure that they are not violating domestic police laws or any public order.
When referring to criminal laws, the principle refers to jurisdiction to adjudicate, whether a state can adjudicate a crime committed abroad? This becomes even a bigger issue when the convict changes his/her nationality. A criminal might escape charges by the change of their nationality after they have committed the crime
Passive Nationality theory
A state at times assumes extraterritorial jurisdiction over foreign nationals if the person who has suffered damages is its national. The idea behind the exercise of passive nationality is to fulfil the duty of a state to protect its nationals from the damage suffered by them in case the alien state fails to punish the offender.
It is still a matter of dispute whether the nationality of the victim and the jurisdiction purview should befall under the ambit of international law. It is viewed as the most aggressive basis of extraterritorial jurisdiction.
Acquisition of Nationality
All the State’s and even the International Bodies have laid down certain provisions on how someone can acquire the nationality of any country. Nationality is acquired most commonly on these grounds:
Nationality by Birth
Being born in a country qualifies you to be a national of the respective country. This is usually referred to as Jus Soli. It is a Latin term, its literal translation is “right of soil”.
The states which follow the principle of jus soli, allow the individual to acquire the citizenship of that particular state on the virtue of being born on the state’s territory. This is provided despite the citizenship or the immigration status of the respective individual’s parents.
By descent from a State’s National
This is known as the principle of Jus Sanguinis. It is derived from a Latin term. It literally translates to “Right of Blood”. It means that the citizenship of the parent is the pre-determinant of the child’s citizenship.
The countries which follow this principle provide citizenship on the basis of birth provided that the individual’s parents were legally settled citizens of the respective country. This ensures that the citizenship passes from the parent to the child.
By Naturalization
The process by which a foreign citizen becomes eligible to acquire the nationality or citizenship of any country. It usually requires the individual seeking the same to fulfill certain requirements and perform certain protocols to be eligible for the same.
The rules and protocols for naturalization vary from country to country. The most common element can be the requirement of a promise to obey and uphold the country’s law and respect the constitution.
Nationality by Marriage
Foreign individuals have the opportunity to be a permanent citizen of the state where your significant other might be. This is known as a citizenship marriage.
Nationality by Adoption
This is also referred to as intercountry or transnational adoption. This is very similar to any normal adoption procedure, just in an international context. By the virtue of this measure, an individual or a couple can be deemed legal parents of a child belonging to a foreign nation.
There are certain protocols to be followed before this can be granted. The individual or couple will have to be eligible. The eligibility criteria for the child are:
The parents (either couples or individuals) must be permanent citizens of a state, either by birth or via naturalization.
The child must be under 18 years of age.
The child must be a permanent citizen of the state from where he is being adopted.
The child must be under the legal custody of some guardian in his/her state.
Loss of Nationality
Also known as loss of citizenship, this refers to the situation wherein a citizen stops or ceases to be a lawful citizen of the country. This term is an umbrella shelter for both:
Voluntary loss of citizenship
Means relinquishing one’s nationality. The prime focus here is on the voluntary part. Almost all the countries have set-up their own set of rules for the formal relinquishment of their citizenship. There are countries which do not allow that as well, they tend to trap their nationals in an endless loop of administrative red-tapism.
Involuntary loss of citizenship
States have certain provisions regarding nationality. If a citizen fails to adhere to these then his/her citizenship can be canceled. It can happen due to a lot of things like someone failing to retain their citizenship. However involuntarily losing one’s citizenship is not immediate, it has to undergo a series of actions to revoke someone’s citizenship.
By Expatriation
An expatriate refers to a person who is residing in any other country rather than his native country. Expatriation is a voluntary right which a citizen of a country can exercises on the basis of his discretion if required. It means renouncing the nationality and allegiance of a country without any constitutional consequences.
Generally, this term refers to the professional and skilled working-class (for private entities or government organizations) or even artisans who work outside their homeland.
The main theme here is that it is voluntary, and the decision rests on the conscience of the citizen.
Renunciation of Nationality
Renunciation refers to the voluntary act by virtue of which an individual can relinquish one’s nationality. It simply means to give up. Most countries do provide their citizens with this right.
Loss of nationality by Substitution
Some states have the provision of providing and taking away the nationality on the basis of substitution. This happens when an individual loses the nationality of one state (his nation) and is able to attain the citizenship of another state.
Different states have different protocols. Some states will cancel your citizenship if you acquire a job in a foreign nation without following government sanctions.
Loss of nationality by Expiration
This does not exactly refer to the loss of nationality, because it is more emotional rather than political. Your citizenship might expire when you stay in a foreign nation for too long.
Dual Nationality
When more than one country regards an individual as its citizen, it is called dual citizenship. Dual citizenship occurs because different countries have set-up varied methods for granting citizenship.
A person who holds dual citizenship generally enjoys the rights of citizenship of both countries. These rights can be:
Right to hold passports.
Right to vote.
Right to residence.
Right to work.
Right to enter the country, etc.
The person is not just entitled to enjoy the rights, he is obliged to conduct certain duties like:
National civil service.
Subject to the taxation system of the country,
Nationality of married women
Before the Convention on the Nationality of Married Women, no legislation existed to protect married women's right to retain or renounce national citizenship in the way that men could. Women's rights groups recognized a need to legally protect the citizenship rights of women who married someone from outside their country or nationality.
The Convention was concluded in the light of the conflicts of law on nationality derived from provisions concerning the loss or acquisition of nationality by women as a result of marriage, divorce, or of the change of nationality by the husband during marriage. It allows women to adopt the nationality of their husband based upon the woman's own decision, but does not require it.
• If the national law of the wife causes her to lose her nationality on marriage with a foreigner, this consequence shall be conditional on her acquiring the nationality of the husband.
• If the national law of the wife causes her to lose her nationality upon a change in the nationality of her husband occurring during marriage, this consequence shall be conditional on her acquiring her husband’s new nationality.
• Naturalization of the husband during marriage shall not involve a change in the nationality of the wife except with her consent.
STATELESSNESS
The status of having no nationality as a consequence of being born without any nationality or as a result of deprivation or loss of nationality
Everyone has the right to a nationality.
No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Under International Law, a stateless person means an individual who is not recognized as a national of any country. Article 1 of the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.”. Hence if there is no link or bond between an individual and a country then such an individual will be termed as stateless.
A notable incident of statelessness is where Merhan Karimi Naserri, an Iranian refugee who was denied citizenship in his country, spent 18 years of his life at the Charles de Gaulle Airport in France. In 2004, his autobiography was published in the book “The Terminal”.
Causes of statelessness.
Discrimination.
Conflict and gap between laws. Nationality can be acquired in various ways – by birth, naturalization, descent, marriage, registration, etc. all countries have their own nationality law by which citizenship could be acquired or withdrawn. If a person is unable to prove his link with a country will be at risk of becoming stateless
State succession.
My renunciation. Statelessness under International Law: All you want to know (ipleaders.in)
United Nations High Commission for Refugees (UNHCR)
The United Nations High Commission for Refugees is an agency of the United Nations that addresses the issue of statelessness. It seeks to provide assistance of food, water, and shelter, safeguarding human rights and finding permanent solutions to refugee problems. Currently, UNHCR is working in 134 countries with a workforce of more than 16 thousand people.
The UNHCR Statistic Database provides necessary information relating to data, report, etc that is required for field operations. In 2014, The UNHCR launched a ten-year global campaign #IBelong to end statelessness by the year 2024. UNHRC believes that the issue of statelessness can be resolved with necessary assistance by political and public support.
Measures recommended by the UNHCR to end statelessness
By ensuring that no child is brought into the world stateless.
Resolving the current statelessness situation.
Elimination of gender discrimination law.
Preventing statelessness in the event of state succession.
Facilitate naturalization of stateless migrants.
By ensuring birth-registration.
To accede to the UN Convention relating to statelessness
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