Acquisition of Nationality

Acquisition of Nationality refers to the legal process through which a person becomes a national of a State. Nationality may be acquired automatically at birth or subsequently through legal procedures established by the State.

International Law recognises that States have substantial authority to determine who their nationals are, subject to applicable international obligations concerning statelessness, discrimination, human rights and other matters.

Meaning

Nationality establishes the legal bond between an individual and a State.

A person may acquire nationality:

• at birth;
• through descent;
• through birth in a territory;
• through naturalisation;
• through registration;
• through adoption;
• through other methods recognised by domestic law.

The two principal principles governing nationality at birth are:

Jus soli → nationality based on territory/place of birth

Jus sanguinis → nationality based on descent

Legal Basis

The acquisition of nationality is primarily governed by the domestic law of each State.

However, International Law imposes certain limits on State discretion.

Important international considerations include:

• prevention of statelessness;
• prohibition of arbitrary deprivation of nationality;
• equality and non-discrimination;
• nationality of children;
• nationality in cases of State succession.

Acquisition at Birth

Nationality acquired automatically at birth is generally known as nationality by birth.

It may be based upon:

1. Jus soli
2. Jus sanguinis
3. A combination of both.

Jus Soli

Jus soli means “right of the soil.”

Under this principle, nationality is acquired because a person is born within the territory of a particular State.

For example:

Child born in State A

↓

State A’s law follows jus soli

↓

Child acquires nationality of State A

The precise conditions depend upon the domestic law of the State.

Absolute Jus Soli

Under an absolute form of jus soli, virtually every person born within the territory acquires nationality automatically, subject to limited exceptions.

Such a system is relatively uncommon today.

Qualified Jus Soli

Under qualified jus soli, nationality is granted to persons born within the territory only when specified conditions are satisfied.

Conditions may concern:

• parents’ residence;
• parents’ nationality;
• lawful residence;
• application or registration after birth.

Jus Sanguinis

Jus sanguinis means “right of blood.”

Nationality is acquired through descent from a parent who possesses the nationality of the State.

For example:

Parent → National of State A

↓

Child born abroad

↓

Child may acquire State A nationality through descent

This principle allows nationality to pass across generations even when the child is born outside the territory.

Combination of Jus Soli and Jus Sanguinis

Many States use a combination of both principles.

A child may acquire nationality through:

• place of birth;
• nationality of parents;
• or both.

The precise rules depend upon domestic legislation.

Acquisition Through Naturalisation

Naturalisation is the process through which a person acquires nationality after birth.

It is one of the most important forms of voluntary acquisition of nationality.

A foreign national may apply for naturalisation after satisfying conditions established by domestic law.

Conditions for Naturalisation

States may impose requirements such as:

• minimum period of residence;
• lawful residence;
• knowledge of the national language;
• knowledge of constitutional or civic principles;
• good character;
• financial or other requirements;
• intention to maintain a connection with the State.

The exact conditions differ from State to State.

Residence Requirement

A State may require an applicant to reside within its territory for a specified period before becoming eligible for naturalisation.

The purpose is generally to establish a sufficiently strong connection with the State.

Language Requirement

Some States require applicants to demonstrate knowledge of the national or official language.

This is intended to facilitate integration into the national community.

Knowledge of Laws and Institutions

Naturalisation laws may require an applicant to demonstrate basic knowledge of:

• the Constitution;
• government institutions;
• history;
• civic responsibilities.

Good Character

Some legal systems require applicants to demonstrate good character.

Criminal convictions or other conduct may therefore affect eligibility, depending upon domestic law.

Oath or Declaration

Naturalisation may require the applicant to take an:

• oath of allegiance;
• citizenship oath;
• formal declaration.

This represents the applicant’s commitment to the State.

Discretion in Naturalisation

Naturalisation is generally subject to the domestic law of the State.

Even when an applicant satisfies the statutory requirements, the precise extent of administrative discretion depends upon the legal system concerned.

Therefore:

Naturalisation ≠ automatic right in every legal system

Registration

Nationality may also be acquired through registration.

Registration is generally a simplified statutory process available to persons who have a particular connection with the State.

It may apply to:

• persons with a national parent;
• persons born abroad;
• persons with historical connections to the State;
• spouses;
• persons whose nationality status requires formal confirmation.

The exact categories depend upon domestic law.

Acquisition Through Marriage

Marriage may facilitate acquisition of nationality in some States.

However, modern International Law does not generally require a State to automatically confer nationality upon a foreign spouse merely because of marriage.

Domestic law determines:

• eligibility;
• waiting periods;
• residence requirements;
• application procedures.

The historical principle of automatic nationality change through marriage has increasingly been rejected.

Convention on the Nationality of Married Women, 1957

The Convention on the Nationality of Married Women, 1957 seeks to ensure that marriage does not automatically change a woman’s nationality and that changes in nationality are not imposed merely because of the nationality of her spouse.

Acquisition Through Adoption

A child may acquire nationality through adoption where the domestic law of the relevant State provides for it.

Adoption rules may be designed to prevent children from becoming stateless.

Acquisition Through State Succession

Changes in the status or territory of States may affect the nationality of individuals.

Examples include:

• merger of States;
• dissolution;
• separation;
• transfer of territory.

International Law seeks to prevent individuals from being left without nationality as a result of such changes.

Acquisition by Option

In certain circumstances, individuals may be given a right of option to choose between available nationalities.

This may arise particularly in situations involving:

• territorial changes;
• State succession;
• treaties;
• special nationality arrangements.

Acquisition Through Repatriation

Some States provide simplified procedures for former nationals or persons with historical connections to regain nationality.

This is sometimes referred to as repatriation or restoration of nationality, depending upon domestic terminology.

Acquisition of Nationality by Refugees

Refugees may acquire nationality through naturalisation or other procedures under the domestic law of the State of residence.

International Law encourages States to facilitate naturalisation and integration of refugees in appropriate circumstances.

Avoidance of Statelessness

A major concern in nationality law is preventing statelessness.

Statelessness occurs when a person is not considered a national by any State under the operation of its law.

Acquisition rules should therefore seek to prevent situations where:

Nationality of State A lost

↓

Nationality of State B not acquired

↓

Person becomes stateless

Nationality of Children

International Law gives particular importance to preventing children from becoming stateless.

The Convention on the Rights of the Child, 1989, recognises the child’s right to acquire a nationality.

This is especially relevant where a child would otherwise have no nationality.

Multiple Nationality

A person may acquire more than one nationality where the nationality laws of different States overlap.

For example:

State A → jus soli

State B → jus sanguinis

A child born in State A to parents who are nationals of State B may acquire both nationalities under the relevant domestic laws.

Problems of Multiple Nationality

Multiple nationality can create questions concerning:

• military service;
• taxation;
• diplomatic protection;
• jurisdiction;
• political rights;
• conflicting obligations.

International Law does not universally prohibit dual nationality.

Effective Nationality

Where an individual possesses multiple nationalities, questions may arise as to which nationality represents the person’s genuine or effective connection with a State.

The concept is particularly important in cases involving diplomatic protection.

Nottebohm Case

In Nottebohm (Liechtenstein v. Guatemala), 1955, the ICJ considered the international effect of nationality acquired through naturalisation.

The Court examined the connection between Nottebohm and Liechtenstein and concluded that the nationality relied upon by Liechtenstein could not be invoked against Guatemala in the circumstances of the case for diplomatic protection.

The case is therefore important in discussions of:

• naturalisation;
• effective nationality;
• genuine connection;
• diplomatic protection.

Nationality and Diplomatic Protection

Acquisition of nationality is particularly important because nationality may create the basis for diplomatic protection.

The basic relationship is:

Acquisition of nationality

↓

Legal bond with State

↓

Potential diplomatic protection

↓

State may invoke responsibility for injury to its national

The exercise of diplomatic protection remains subject to its own requirements, including the applicable rules concerning continuous nationality and exhaustion of local remedies.

International Law and State Discretion

States have broad discretion to determine their nationality laws.

However, this discretion is subject to international obligations.

A State cannot simply rely on domestic legislation to avoid obligations arising under International Law.

Prohibition of Arbitrary Nationality Rules

Nationality laws may raise international concerns where they involve:

• arbitrary deprivation;
• racial discrimination;
• gender discrimination;
• discriminatory treatment of particular groups;
• creation of statelessness.

Modern International Law therefore places increasing emphasis on equality and protection against arbitrary nationality decisions.

Important International Instruments

Universal Declaration of Human Rights, 1948

Article 15 recognises:

• the right to a nationality;
• protection against arbitrary deprivation of nationality;
• the right not to be arbitrarily denied the ability to change nationality.

Convention on the Reduction of Statelessness, 1961

Seeks to reduce and prevent statelessness through safeguards concerning nationality.

Convention on the Rights of the Child, 1989

Recognises the child’s right to acquire a nationality.

Convention on the Nationality of Married Women, 1957

Addresses nationality consequences of marriage and seeks to prevent automatic changes based solely on marriage.

Acquisition vs Loss of Nationality

These concepts should be distinguished. Acquisition Loss Becoming a national Ceasing to be a national Birth Renunciation Descent Deprivation Naturalisation Certain statutory grounds Registration Certain effects of acquiring another nationality Adoption Other grounds under domestic law State succession State succession

Common Confusions

Is nationality always acquired by birth?

No. Nationality may also be acquired through naturalisation, registration, adoption, marriage-related procedures and other mechanisms.

What is jus soli?

Acquisition of nationality based primarily on place of birth.

What is jus sanguinis?

Acquisition of nationality based primarily on descent.

Is naturalisation automatic?

Generally no. It involves a legal process under domestic law.

Can marriage automatically give nationality?

Modern International Law does not generally require automatic nationality through marriage.

Can a person have more than one nationality?

Yes, depending upon the nationality laws of the States concerned.

Can a State determine its own nationality laws?

Generally yes, subject to applicable International Law.

What is statelessness?

A person is stateless when no State considers that person its national under its law.

What is the leading case concerning nationality and naturalisation?

Nottebohm (1955).

Topic at a Glance

Point Position Meaning Legal process of becoming a national Primary authority Domestic law, subject to International Law Birth principle Jus soli / jus sanguinis Jus soli Place of birth Jus sanguinis Descent Naturalisation Acquisition after birth Registration Statutory acquisition Marriage May facilitate acquisition under domestic law Adoption May confer nationality under domestic law State succession Can alter nationality Option Choice between available nationalities Multiple nationality Permitted in many legal systems Statelessness Major concern Key international principle Right to nationality Leading case Nottebohm, 1955

Quick Revision

• Acquisition of Nationality means becoming a national of a State.
• States primarily regulate nationality through domestic law.
• International Law places limits on this power.
• Main methods include:
  • jus soli;
  • jus sanguinis;
  • naturalisation;
  • registration;
  • adoption;
  • marriage-related procedures;
  • State succession;
  • option.
• Jus soli → place of birth.
• Jus sanguinis → descent.
• Naturalisation → acquisition after birth through a legal process.
• Registration → acquisition through a statutory procedure.
• International Law seeks to prevent statelessness.
• Article 15 UDHR recognises the right to nationality.
• The 1961 Convention on the Reduction of Statelessness seeks to reduce statelessness.
• The Convention on the Rights of the Child, 1989 recognises the child’s right to acquire a nationality.
• Nottebohm (1955) is important for nationality acquired through naturalisation and the concept of genuine/effective connection.
• The essential principle is:

Nationality may be acquired by birth, descent, naturalisation or other procedures established by domestic law, subject to the limits imposed by International Law.

Conclusion

Acquisition of nationality is the process through which an individual establishes a legal bond with a State. Although nationality is primarily governed by domestic law, International Law increasingly regulates its international consequences and seeks to prevent arbitrary deprivation, discrimination and statelessness. Nationality may be acquired at birth through jus soli or jus sanguinis, or after birth through naturalisation, registration, adoption, marriage-related procedures, option and other mechanisms recognised by domestic law. State succession can also create special nationality rules where territories or States undergo fundamental changes. The possibility of dual or multiple nationality demonstrates the interaction between different national legal systems, while conflicting nationality laws can sometimes produce statelessness. International instruments such as the Universal Declaration of Human Rights, 1948, the Convention on the Nationality of Married Women, 1957, the Convention on the Reduction of Statelessness, 1961, and the Convention on the Rights of the Child, 1989 provide important safeguards. The Nottebohm case remains an important authority concerning nationality acquired through naturalisation and its international effect in diplomatic protection. Ultimately, acquisition of nationality establishes an important legal relationship between the individual and the State, while International Law seeks to ensure that the process operates consistently with fundamental international standards.