Nationality: Nottebohm, Dual Nationality and Indian Law

Nationality is the legal bond between a person and a state. It determines which state may protect the person abroad, which state's laws follow him, and to which state he owes allegiance. Each state decides who its nationals are, but international law sets limits on when other states must accept that decision. This note covers the general rules, the Nottebohm case, dual nationality, statelessness and Indian citizenship law.

1. Who Decides Nationality?

• Nationality Decrees in Tunis and Morocco, PCIJ, 1923. Questions of nationality are in principle within a state's reserved domain, but whether a matter is solely within domestic jurisdiction is a relative question depending on the development of international relations.
• Hague Convention, 1930, Article 1. Each state determines under its own law who are its nationals; this law shall be recognised by other states so far as it is consistent with international conventions, custom and the principles of law generally recognised with regard to nationality.
• Nationality and citizenship. Nationality is the international concept; citizenship usually refers to the full political rights given by domestic law.

Figure 1: Acquisition and loss of nationality

2. The Nottebohm Case (Liechtenstein v Guatemala), 1955

Figure 2: Facts of the case

• Facts. Friedrich Nottebohm, a German national, had lived and done business in Guatemala since 1905; in October 1939, soon after the war began, he obtained Liechtenstein nationality within days, with the residence requirement waived; in 1943, Guatemala arrested him as an enemy alien, deported him and seized his property.
• Held. Liechtenstein could not exercise diplomatic protection against Guatemala, and its claim was inadmissible, because the nationality was not based on a genuine connection.
• The genuine link. Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with reciprocal rights and duties; a nationality lacking this need not be recognised by another state for purposes of protection.
• Limits of the rule. The decision concerned opposability to a particular state with which the person had closer ties; the ILC Articles on Diplomatic Protection (2006) do not require a genuine link and treat Nottebohm as confined to its facts.

3. Dual Nationality

Figure 3: Rules on dual nationals

• Mergé claim (US v Italy), 1955. The Italian-United States Conciliation Commission held that the United States could protect a dual national against Italy only if her American nationality was dominant; it was not, as she had lived mainly outside the United States.
• Iran-United States Claims Tribunal, Case A/18, 1984. Dual nationals could bring claims against Iran where their dominant and effective nationality during the relevant period was American.
• Canevaro (Italy v Peru), PCA, 1912. Peru was entitled to treat a dual national as Peruvian, since he had acted as a Peruvian, including standing for its Senate.

4. Statelessness and the Right to a Nationality

• Human rights. Everyone has the right to a nationality, and no one shall be arbitrarily deprived of it (Article 15, UDHR); every child has the right to acquire a nationality (Article 24(3), ICCPR; Article 7, Convention on the Rights of the Child)
• Treaties. The Convention relating to the Status of Stateless Persons, 1954 and the Convention on the Reduction of Statelessness, 1961; India is a party to neither (Topic 40)
• Married women. The Convention on the Nationality of Married Women, 1957 and Article 9 of CEDAW provide that marriage shall not automatically change a wife's nationality.

5. Indian Citizenship Law

• Constitution. Articles 5 to 8 dealt with citizenship at the commencement of the Constitution; Article 9 provides that a person who voluntarily acquires the citizenship of a foreign state ceases to be an Indian citizen; Article 11 empowers Parliament to regulate citizenship.
• Single citizenship. India does not allow dual citizenship; Overseas Citizenship of India (section 7A, introduced in 2005) gives persons of Indian origin a status with many benefits but no political rights.
• Termination. Whether a citizen has voluntarily acquired foreign citizenship is decided by the Central Government under section 9(2) and the Citizenship Rules, not by courts in the first instance (State of Andhra Pradesh v Syed Mohd Khan, 1962)
• Citizenship (Amendment) Act, 2019. Provides that specified communities from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2014 are not illegal migrants, and allows them naturalisation after a shorter period (section 6B); rules were notified in 2024.
• Section 6A. In 2024, a Constitution Bench upheld, by four to one, section 6A, which conferred citizenship on certain migrants to Assam under the Assam Accord.

Figure 4: Modes under the Citizenship Act, 1955

6. Frequently Asked Questions

Did Nottebohm hold that Liechtenstein's grant of nationality was void?

No. It held only that the nationality, lacking a genuine connection, could not be relied on against Guatemala for the purpose of diplomatic protection. The validity of the grant within Liechtenstein's law was not denied.

Can an Indian citizen hold a foreign passport as well?

No. Under Article 9 of the Constitution and section 9 of the Citizenship Act, an Indian citizen who voluntarily acquires foreign citizenship ceases to be an Indian citizen. Such persons may apply for Overseas Citizenship of India.

7. Related Topics

• Topic 22: State Succession. Nationality on change of sovereignty.
• Topic 39: Aliens and Diplomatic Protection. Nationality of claims.
• Topic 40: Refugees and Statelessness. The 1954 and 1961 Conventions.