Chapter 15 NATIONALITY AND STATELESSNEgs YY BEEN STRESSED that, hata s, the individual is merely an obie ete cen we of international law and is thie a a o a ened by its rules, both in the enjoyment of rights re she performance of dutics. Ordinarily, the individual can perticipate in internaticnal relations only through oe instrumentality of the state to which he belongs, as when his government asserts a diplomatic claim on his behalf «aries he may have suffered in a foreign jurisdiction. This remedy is generally not available to him if he is stateless for there would then be no entity with interna- tional personality to intercede for him for the protection or vindication of his rights under the law of nations. Viewed in this light, nationality acquires not only municipal but international significance. Nationality is the tie that binds an individual to his state, from which he can claim protection and whose laws he is obliged to obey. In other words, nationality is mem- bership in a political community with all its concomitant b rights and obligations. This term is often used inter- _ changeably with citizenship, ip, which however, has a more - exclusive scope in that it applies only to certain i i than the rest of theNArionaLtry AND STATELESSNESS 183 the right to vote for its public officers like the President of the United States, The term subject, on the other hand, has particular reference to the nationals of monarchial regimes, e.g., a British subject, who may be @ citizen of the United Kingdom or of one of its colonies. Acquisition of Nationality - Nationality may be acquired by birth or by naturali- sotioma.ts Jal aoquires the nationality of tho ‘ste where he is born jure soli or the nationality of his parents jure sanguinis. Naturalization, on the other hand, is a process by which a foreigner acquires, voluntarily or by operation of law, the nationality of another state. Naturalization may be direct or derivative. Direct naturalization is effected: (a) by individual proceedings, usually judicial, under general naturalization laws; (b) by special act of the legislature, often in favor of distinguished foreigners who have rendered some notable service to the local state; (c) by collective change of na- tionality (naturalization en masse) as a result of cession or subjugation; and(d) in some cases, by adoption of orphan minors as nationals of the state where they are born. Derivative naturalization in turn is conferred: (a) on the wife of the naturalized husband; (b) on the minor chil- dren of the naturalized parent; and (c) on the alien woman upon marriage to a national.’ Derivative naturalization does not always follow as a matter of course, for it is usu- ally made subject to stringent restrictions and conditions. Our own laws, for instance, provide that an alien woman married to a Filipino shall acquire his citizenship only if she herself might be lawfully naturalized.” pee *Hackworth, 1-3. 2 See the case of Yao v, Commissioner of Immigration, L- 21289, Oct. 4, 1971.INTERNATIONAL i Law a uitiple Nationality individual may sometimes find hi og more hal one nationality poe peal Possessed application to him of the municipal laws of iin Ping him as their national. For example, a Baie States of Filipino parentage would co born under the jus sll aa presetbed {) Jaw and at the same time a heen ee. ax Cunstiiution, which recognizes only es c minis. Again, uader the doctrine of indelible lle. «ance, a8 observed by some states, an individual may be Compelled to retain his original nationality notwithstand- ing that he has already renounced or forfeited it under the laws of a second state whose nationality he has acquired. be the case of a woman who upon continues to be a national of her own state under its laws while also acquiring her hus- band’s nationality in accordance with the laws of his state Also in point is the William’s Case,’ where an American citizen who had accepted a commission in the French navy was convicted of violating the Neutrality ActNATIONALITY AND STATELESSNESS 185 Loss of Nationality ae Nationality may be lost voluntarily or involuntarily. 2 Voluntary methods include renunciation, express or implied, and request for release, both of which usually Precede the acquisition of a new nationality. The involun- tary methods are forfeiture as a result of some disqualifica- Sion or prohibited act like enlistment in a foreign army or long continued residence in a foreign state, and substitu- tion of one nationality for another following a change of eorereenty or any act conferring derivative naturaliza- ion. Conflict of Nationality Laws To provide against conflicts arising from divergent municipal laws on nationality, the following 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. This law shall be recognized by other States insofar as it is cousisient with international conven- tions, international customs, and the principles of law gener- ally recognized with regard to nationality. ‘Art. 2. Any question as to whether a person possesses the nationality of a particular State shall be determined in ac- cordance with the law of the State. ‘Art. 3. Subject to the provisions of the present Conven- tion, a person having two or more nationalities may be re- garded 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. a oil + Oppenheim-Lauterpacht, 657-659.Inrernari 186 ONAL Law out prejudice to the applicati hovel status and of ony conan its law in m, f the nationalities which any guq force, a Frey 7 exclusively in its territory ane Person Pacyettte the country in which he is habitually as he the nationalite or the nationality of the country with ennepally He stances he appears to be in fact most ich in the ae (Principle of Effective or Active Nationality) closely connected Art. 6. Without prejudice to the li cord wider rights to renounce its Sue of a State to ac. sessing two nationalities acquired without a @ person pos- on his pert May renounce one of them with enaany act Por State whose nationality he desires tc @utiorization authorization may not be refused in the case ee This - has his habitual and principal residence abeusitnaee who tion laid down in the law of the State whose ativan e condi- sires to surrender are satisfied. lity he de- wit erson shall, © Thus, where a person possesses both Philippine and American nationality, his claim to Philippine nationality shall be decided on the basis alone of Philippine law, to the exclusion of all other laws. If, on the other hand, he claims American nationality, the matter shall be resolved on the basis alone of American law, to the exclusion of all other laws. But if the issue of his real nationality is raised in a i the laws of that country will obvi- he does not claim Spanist oa Spain shall a princip! R pe the dual na- exclusively of theNationaLiTy AND STATELESSNESS 187 UNITED STATES (ALEXANDER TELLECH) v. AUSTRIA AND HUNGARY Tripartite Claims Commission, 1928; Decisions and Opinions (1929), p. 71 Question: Could the Austrian government subject eae Tellech, who was born of Austrian parents in the United States, to compulsory military service? _, Held: “The 4 + by the Austriza civil auths- rities in the exercise of their police powers and by the Aus- tro-Hungarian military authorities, of which complaint is made, was taken in Austria, where claimant is voluntarily residing, against claimant as an Austrian citizen. Citizen- ship is determined by rules prescribed by municipal law. Under the law of Austria, to which claimant had voluntar- ily subjected himself, he was an ‘Austrian citizen. The Aus- trian and the Austro-Hungarian authorities were well within their rights in dealing with him as such. Possessing as he did dual nationality, he voluntarily took the risk incident to residing in ‘Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria.” THE CANEVARO CASE ‘Tribunal of the Permanent Court of Arbitration, 1912; Scott, Hague Court Reports, 284. Italy file a diplomatic claim against who is a national of Question: May Peru on bebalf of Rafael Canevaro, poth states under their respective municipal laws? Held: “Whereas, according to Peruvian legislation (34 of the Constitution), Rafael Canevaro is a Peruvian by pirth because ‘porn on Peruvian territory, and, whereas, on the other hand, ding to Italian legislation (Article 44 of the Civil Code) he is of Italian nationality because bornNATIONALITY AND STATELESSNESS: 189 a ‘i cat ee country at the time of his application for Rar SE. tic, No intention of settling there was “a at time or realized in the ensuing weeks, al or years—on the contrary, he returned to Guate- la very shortly after his naturalization and showed every intention of remaining there . . . Naturalization was asked not 80 much for the purpose of obtaining @ legal retognition of Nottebohm’s membership in fact in the Population of Liechtenstein, as it was to enable him to substituve for his status as a national of a belligerent Stave that of a national of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations—other than fiscal obligations—and exercising the rights pertaining to the status acquired. Guatemala is under no obligation to recognize & na- tionality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis-a-vis Guatemala and its claim must, for this reason, be held to be inadmissible.” Statelessness Statelessness is the con ition or status of an individ- ual bo is born without any nationality or who feses tS nationality without retaining or acquiri another. An nation ofthe fist case would be that of «child Pom recognized to parents state where only the jus sanguinis is c jus soli. The second case