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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 legislature c. Collective change of nationality (as result of cession or subjugation) d. Adoption of orphan minors as nationals of the state where they are born. DERIVATIVE NATURALIZATION is conferred on: a. The wife of the naturalized husband b. Minor children of the naturalized parent c. 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.

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 or prohibited act) b. Substitution CONFLICT 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.

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

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 retain their 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 does not acquire the nationality of the adopter. c. Children shall have the nationality of the state of their birth parents whenever their parents are: 1. Unknown 2. Stateless or of unknown nationality 3. 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 of Stateless Persons (1954), he is entitled to the following rights: a. Religion and religious instruction b. Access to courts c. Elementary education d. Public relief and assistance e. Rationing of products in short supply

f. Treatment not less favorable than that accorded to aliens generally.