Unit 04

Loss of Nationality
• Voluntary loss of citizenship
• Involuntary loss of citizenship
• Renunciation of Nationality
• Substitution
• Expiration
• Deprivation
Expiration
• Citizenship lost- long stay abroad
• USA- naturalisation- citizenship-
• continuous stay – more than 3 years
• Municipal laws- govern
Renunciation

• a person acquires the nationality of more than one State

• National has to choose
• The British nationality Act of 1948- children – acquiring majority
Substitution
• loses nationality of state and acquires the nationality of another State
• The United States nationality Act of 1952, -loss of American
nationality on the voluntary naturalization of an American National in
a foreign country.
• if the national of that State without seeking permission of the
government obtains employment in another State, then he may be
deprived of his nationality
Deprivation
• Some of the breach of municipal laws -by its nationals -results in the
deprivation of their nationality
Double nationality
• When more than one country regards an individual as its citizen, it is called dual citizenship.

• Dual citizenship occurs because different countries have set-up varied methods for granting citizenship.

• A person who holds dual citizenship generally enjoys the rights of citizenship of both countries. These rights can be:

• Right to hold passports.

• Right to vote.

• Right to residence.

• Right to work.

• Right to enter the country,

• The person is not just entitled to enjoy the rights, he is obliged to conduct certain duties
Nottebohm Case (Liechtenstein v.
Guatemala)
 Facts: Nottebohn, a natural citizen of Guatemala, in Germany for 34 years, also had
business ties with the state. After the outbreak of World War II applied for
Liechtenstein citizenship, even though he had no ties with it. The application was
approved by Liechtenstein but it was to be waived off after three years.

• After this approval, Nottebohn travelled to Liechtenstein. Upon his return, he was
denied entry because he ceased being a German citizen. His Liechtenstein was not
honoured, collaterally causing Liechtenstein to file a suit in the International Court to
force Guatemala to recognise Nottebohm as one of its nationals.
 Issues: Can nationality be disregarded by other states in cases where it is clear that
it was a mere device. The nationality that is provided to an individual has to be the
concern of the conferring nation?

 The judgement: It was held by the honourable Court that the issues regarding
citizenship are the sole concern of the nation which grants it. This is supposed to be
generally accepted. However, this also does not imply that other states do have to
unquestioningly accept the granting state’s designations. As in this particular case,
there exists no relationship between Liechtenstein and Nottebohm, thus the change of
nationality here was merely an act guided by the fear of war. Thus, under these
circumstances, Guatemala was not obliged to recognize it.
The Effective Link principle/ Nottebohm Principle

• This principle requires the nation to prove a meaningful connection to the state in
question.

• This principle is usually applied in the cases involving dual nationality, where the
decision has to be made regarding which state’s citizenship has to be provided. Thus as
the Court ruled in the Nottebohm’s case that there was no significant link between
Nottebohm and Liechtenstein.

• The sole purpose of acquiring the nationality of Liechtenstein was to escape the
belligerent conditions of the state of Guatemala. Thus the court ruled that
Liechtenstein was not entitled to take up Nottebohm claims on his behalf against
Guatemala.
Asylum
• It has been derived from a Latin word- ‘Asylon’ –
meaning- ‘freedom from seizure’.
• Asylum- legal protection granted to the people who
have fled their home countries due to warship, conflict,
persecution, or fear of persecution.
• A person who seeks International asylum- ‘Asylee’
• Article 14 of the Universal Declaration of Human Rights- the
right to an individual to seek asylum in any country to protect
them from persecution
• Article 14(2) UDHR- ny individual who has a criminal record of
anything which is not acceptable as per the principles of the
United Nations, cannot seek asylum and in case of non-
political reasons, the asylum can be denied.
• Refugee Convention, 1951 Article 33 (1),- prohibits the
expulsion or return of refugees and asylum-seekers if their life
or freedom is in danger based on their race, religion,
membership of a social group, political opinion, or nationality.
Different kinds of Asylum
• Territorial Asylum
• Extra-Territorial Asylum
• Asylum in Diplomatic Asylum
• Asylum in the premises of the International Institution
• Asylum in Warship
• Asylum in Merchant Vessels
• Article 3(1) Declaration on Territorial Asylum- provides
safety to the individuals and assures that once they are
provided asylum in a country they cannot be expelled or
forced to return to a place where they might be persecuted.
• Some famous examples of this type of asylum include:
• The asylum that was given by India to Dalai Lama and his
followers in India in 1955 as those people were facing
atrocities for a long time in China.
• Salman Rushdie, a writer who was in controversy for his
novel ‘Satanic Verses’ was given Asylum by the United
Kingdom.
Territorial Asylum

• state provides asylum to asylee within its territory

• Article 1(1) of the Declaration on Territorial Asylum-
states that a state can grant asylum by exercising
its sovereign power to an individual
• Article 2 of the Declaration on Territorial Asylum-
provides that if any state feels overburdened in
providing asylum to the people then States shall either
individually or through the United Nations help that
particular to lighten the burden.
Extra-Territorial Asylum

• State provides asylum outside the territory of its state,

such as in warships, legation consular premises,
international headquarters, or its Embassy situated in a
different country
• The Convention on Asylum held in Havana in 1928 to
which only a very few countries have ratified, provides
that it is not allowed for states to grant asylum to
people who are accused of common crimes or deserters
from the navy or army in their legations, military
camps, warships or military aircraft
Asylum in Diplomatic Asylum

• It is granted when the state provides asylum in the

Embassies
• Example- an asylum provided by the USA to the
Hungarian Roman Catholic Jozsef Cardinal Mindszenty
who was unsuccessful against Hungary’s communist
government in 1956. He was later provided with the
refugee title and he stayed for 15 years in the USA.,
foreign legations, and consular premises
Asylum in the premises of the International Institution

• International institutions include the United Nations

Organization (UNO), the World Trade Organization
(WTO), etc
• absence of any agreements- humanitarian basis
Asylum in Warship

• When a warship is in the territorial water body of another

state then the coastal state only has the power to require
the ship to leave their territorial waters and do nothing
else.
• The Havana Convention on Asylum’s Article 1 provides
that people who are accused of common crimes and not
political crimes if taking refuge under a warship, military
camps, or aircraft or legations shall be handed over to
the local government on request.
• Article 2 of the Convention provides that asylum at such
places be provided only in urgent cases.
Asylum in Merchant Vessels

• Merchant vessels include the commercial ships, the

territory in which they are the law of that country is
binding upon them.
• The laws of maritime state that if the asylum-seeker is
in life-threatening trouble and facing serious
persecution then he/she will be allowed the asylum.
• In 2013 a British merchant ship on the wharf of
Christmas Island rescued around 78 asylum seekers
from a stricken vessel
Colombia v. Peru 1950
• A national of Peru who was a political leader named
Victor Raul Haya de la Torre, he was accused of
instigating a military rebellion. He was granted asylum
by the Colombian embassy at Limo. However, he was
not allowed to leave the country. The dispute arose
between Peru and Colombia and the matter was then
referred to the International Court of Justice. The main
question raised was regarding the right to grant
diplomatic asylum.
• The court carefully observed that:
• Diplomatic asylum is the derogation of territorial sovereignty and it
should not be recognized unless in each case a legal basis is established.
• The state providing such a grant must prove that it has the right to
grant diplomatic asylum and it should be respected by the territorial
State.
• The Court also observed that there is no international treaty related to
Diplomatic Asylum, only Latin American and Central American countries
have such rights. Diplomatic Asylum is defined as the asylum provided
to people who are political offenders and fear that if they are
prosecuted, they will have to face an unfair trial and therefore want to
escape the persecution. The Court held that it is a settled fact that
common criminals cannot be granted asylum.
Extradition
• According to Starke -Extradition denotes the process whereby under
the treaty or upon a basis of reciprocity one state surrenders to
another state at its request a person accused or convicted of a
criminal offence committed against the laws of the requesting state,
such requesting state is competent to try the alleged offender.
• According to Grotius-It is the duty of each state to punish the
criminals or to return them to the states where they have committed
the crime
Types of Extradition Treaty

• There are two types of extradition treaties

1.List Treaty: – The most common and traditional is the list
treaty, which contains a list of crimes for which a suspect will
be extradited.
2.Dual criminality Treaty: – used since the 1980s, generally
allow for extradition of a criminal suspect if the punishment
is more than one year imprisonment in both countries.
• Under both types of treaties, if the conduct is not a crime in
both countries then it will not be an extraditable offense.
Purpose of Extradition Treaty
a) No criminal should go unpunished
b) Country does not have extra-territorial jurisdiction except
in some serious offence.
c) It works as a warning for the criminals.
d) To remove crime from the society.
Essential conditions for extradition
a) The relevant crime is sufficiently serious.
b) There exists a prima facie case against the individual sought.
c) The event in question qualifies as a crime in both countries.
d) The extradited person can reasonably expect a fair trial in the
recipient country.
e) The likely penalty will be proportionate to the crime.