NATIONALITY

Introduction
Nationality implies obedience and a national (citizen) is an individual who belongs to the main population of a country. However, someone who does not live in that country, although he/she lives there, is called stranger or outsider. Possessing a country’s nationality, an individual is considered as one of the members of the given country, which is a legal relationship between the two, i.e. the individual and the country. States that nationality if the individual’s belonging to the population forming a country. This definition includes both of those holding original and acquired nationalities. The principle of nationality rule is applicable when there are numerous independent states and it is considered as one of the principles of public law according to the relationship between the individuals and the state.

Like any other legal relationship, nationality involves two sides: the individuals as a national and the state of nationality. However, all humans possess capacity, even those without a nationality. Determining nationality in any country depends on the special law of that country and this is the country’s law that specifies the conditions of its nationals according to domestic principles and rules. A country’s nationals benefit from any type of right in their country, which is based on equality. However, there are cases like condemnation, acquisition of nationality, or limitations on the nationals’ rights that can cause the individual to lose his/her nationality and deportation. However, naturalization by the state depends on the ability to apply the definition of the state and possession of this position in the international arena. That is, the four components of a government, i.e. territory, population, state and rule, are taken into account. As was mentioned earlier, the present study is a short general review of nationality in private international law.
Nationality
Nationality is the legal status, which represents the country from which an individual belongs. An individual’s nationality denotes, the country where he/she is born and are the legal citizen. The status is acquired by birth, inheritance or naturalization. On the basis of constitutional provisions, every state sets the criteria which determine who can be the nationals of the country. Based on international conventions, every sovereign state is entitled to determine its nationals, as per nationality law. One has the right enter or return to the country; they came from.
Nationality is a spiritual relationship because nationals relate a country to a state in terms of their common goals, customs and rituals, which is independent from certain places and times. When someone is considered as a state’s national, he is considered as the national of that state, no matter where he/she goes. Therefore, changing the place of residence does not change his/her spiritual relationship with the state of nationality.
Importance of Nationality
The right to a nationality is of paramount importance to the realization of other fundamental human rights. Possession of a nationality carries with it the diplomatic protection of the country of nationality and is also often a legal or practical requirement for the exercise of fundamental rights. Consequently, the right to a nationality has been described as the “right to have rights.”

Individuals who lack a nationality or an effective citizenship are therefore among the world’s most vulnerable to human rights violations.
In recognition of the importance of having a nationality, a number of regional and international human rights instruments include the right to a nationality. Article 15 of the Universal Declaration of Human Rights states that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change nationality.
Advantages of Nationality
a) It is a factor for the individual’s national identity.
b) It causes to benefit from civil rights.
c) It results in having political and occupational rights and political positions.
d) It leads to legal and political protection of the states from the nationals’ interests.
e) Based on the obligations, the individuals are responsible for fulfilling military service, taxpaying and defending the country.
Modes of Acquiring Nationality
1) 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 nationality of that particular state on the virtue of being born on the state’s territory.
2) By Descent
This is known as the principle of Jus Sanguine. It is derived from a Latin term. It literally translates to “Right of Blood”. It means that the nationality of the parent is the pre-determinant of the child’s nationality. The countries which follow this principle provide nationality on the basis of birth provided that the individual’s parents were legally settled nationals of the respective country. This ensures that the nationality passes from the parent to the child.
3) By Naturalization
Naturalization (or naturalization) is the legal act or process by which a non – national in a country may acquire nationality of that Country. A person may acquire nationality through naturalization in many ways: –
• Marriage
• Legitimation
• Appointment of government official
• Adoption
• By Resumption
A person who lost his nationality by naturalization may acquire the nationality of the same state again. The acquisition of this kind is called re-integration or by resumption.
• By Subjugation
A person may acquire the nationality through subjugation after conquest. When a part of the territory of a state or state itself is subjugated by another state, all the inhabitants of the territory become the national of annexing state.
Legal Effect of nationality
Political Protection In public international law, nationality relationship causes the individual to have the political protection of his/her state of nationality. A country can provide the individual with the protection that can be in the form of interfering in favor of the individual in case of his/her dispute in another country, providing interests through treaties, preventing from other countries’ interference in his/her personal life, etc.
To apply political protection, there are three significant principles including:

  1. Presence of an official bond between the protecting state and the damaged plaintiff.
  2. Initial proceeding through of local courts by the plaintiff and
  3. The plaintiff’s honesty. In regard with political protection from a natural person, the state of nationality is a state that the individual has its nationality through birth, marriage, nationality request, displacement of nationalities, or any other way that is not against international law. States can only provide their own nationals with political protections in the international arena and nationals of a state include natural and legal persons. Regarding legal persons, political protection is only possible through authentication of the legal person’s relationship with the state of nationality. However, there are cases in which the possibility of political protection vanishes, e.g., when the relationship between the national and the state of nationality is lost or distorted. When an individual does not have the nationality of any state, political protection cannot be applied. And if an individual has dual nationality, this protection cannot be applied against the states of nationality.
    Nationality of Corporation
    Most domestic systems of law confer artificial or legal per sodality on certain entities, of which the corporations are the most obvious and common instance. Once an entity is considered to be a legal person, it is natural and logical to attribute it the most of the characteristics of a natural person. The private internal tonal law too is as much concerned with artificial persons as with natural persons. It may appear somewhat forced and strained too talk of birth, death, rights, obligations, liabilities, etc. of an artificial person, but all this has to be talked and (more import tent) determined. Just as to determine the status, capacity, etc. of a natural person, his connection with a particular system of law has to be known, similarly to determine the status, capacity, rights, liabilities and obligations of an artificial person.
    The nationality of a corporation is seldom relevant in cases of conflict of laws. A company is regarded as the national of the country in which it is incorporated. Under the law of most of the Continental countries a corporation is national of the country where its center of management exists.
    Case Law
    TDM Infrastructure Pvt Ltd v UE Development India Pvt Ltd, Arbitration Application No. 2 of 2008
    In TDM Infrastructure Private Limited v UE Development India Private Limited, Arbitration Application No. 2 of 2008, the Supreme Court of India held that a company’s nationality is determined primarily by its place of incorporation, and is not affected by the company’s “central management and control” being located outside India.
    The case concerned TDM’s application for the appointment of an arbitrator in its dispute with UE. In dismissing this application, the Supreme Court held that both parties were of Indian nationality because they were both companies incorporated in India, despite the fact that TDM’s Board of Directors is based in Malaysia from where its “central management and control” is exercised. The Supreme Court therefore held that the arbitration was a domestic arbitration, not an international commercial arbitration, which meant that under the Indian Arbitration and Conciliation Act, the federal courts (rather than the Supreme Court) had jurisdiction to appoint an arbitrator.
    In terms of the potentially broader relevance of this ruling to India-related commercial transactions:
    • The Supreme Court also reaffirmed that as a matter of Indian public policy, Indian nationals are not permitted to contract out of the application of Indian law. On a narrow interpretation, this merely re-affirms that Indian arbitration tribunals may not apply a foreign governing law to a contract in a dispute between two Indian parties. On a broader interpretation, however, this decision arguably represents authority that Indian public policy precludes Indian nationals (including wholly foreign owned Indian incorporated subsidiaries) from contracting out of Indian law unless they are contracting with a foreign party, even if any disputes under the relevant agreement will be resolved by arbitration outside of India.
    • Indian law (unlike, generally speaking, Chinese law – as to which, see here), however, recognizes that two Indian companies may agree to arbitrate disputes outside of India. As is discussed further here, parties would be well advised (in light of the decision in the Venture Global Engineering case) to exclude the application of Part 1 of the Indian Arbitration and Conciliation Act in any such arbitration agreements.
    Interestingly, and as is discussed here, many bilateral investment treaties to which India is a party do not stipulate that incorporation is the sole test by which a company’s nationality is determined and instead contemplate that an Indian company controlled by foreign investors could be characterized as an investor under these treaties.
    This judgment underscores the need for devising a well thought out strategy for structuring investments in India and emphasizes the importance of careful drafting of arbitration agreements involving Indian parties.
    Conclusion
    Therefore, nationality is a legal relationship between the individual and the state, which causes the individual to be considered as a member of the state in a territory. As a result of acquisition of nationality, acquired or original, the individual will be provided with political and international protection. And since private international law and domestic law are related, the individual will have to observe some obligations whose violation can cause the individual lose his/her nationality and he/she will be stateless until he/she obtains another state’s nationality. Nationality specifies the individual’s national identity and as was referred to, the individual will benefit from the civil rights as a result of his/her nationality. He/she can also benefit from political rights like occupation right, political positions, etc. inside the state of nationality, which in turn brings about some responsibilities for the individual. Finally, private international law has binding rules in the relationship between states and individuals and observance of such rules causes responsibilities and obligations and within private international law, the discussion of nationality is not an exception for this principle.

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