Individuals under International Law: Position and Loss of Nationality

The term“Individuals” in International Law can be traced back to early 1940s when the term existed just as simply as it is referred to in the common terms. Previously “individuals” were merely regarded only as an object of the international law and had no legal significance. Individuals were related to one state through the bond of citizenship and nationality where if an individual was injured, the state would be held responsible to the state to which the injured belonged to, as states were the sole subjects of the international (according to the realist theory).

As an individual the person would not be granted any decree and no one would be held responsible if the person was stateless and had no nationality. After the establishment of the United Nations Organisation “Individuals” turned out as a broader definition under the International law. Here, now “individuals” not only refers to a particular individual but also to foundations, legal enterprises, commercial enterprises and so on. International law [1]not only regulates the relationship of states, even Individuals are considered as the subjects of International Law (according to the functional theory of the International Law).

Theories relating to Individuals in International Law

There has been a constant conflict between the jurists regarding the position of the individuals in the International law which resulted in the evolvement of the three theories[2].

The Realist Theory: –

According to this theory, states are the sole subjects of the International law.

The Fictional Theory: –

According to this theory only individuals are the subject of the International law.

Functional Theory: –

According to this theory both individuals and the state (including few non-state entities) are the subject of the International law.

The International Court of Justice have rejected the realist theory where the states were solely considered as the subject of the International Law. Presently, the duties of the state are the duties of the individuals, there is no difference between an international and state law for an individual. Now, treaties have also conferred upon individual rights and duties such as the International Convention on Human rights. (Danzing Railways official case 1928).

Individuals of a particular nation are supposed to owe allegiance to their states. Individuals who own permanent allegiance to a state are known as Nationals of a state. Nationality is hence defined as “a status of a national person who is attached to a state by a tie of allegiance. Thus, National is the legal tie which defines the relation between the individual and the state. Nationality of an “individual” is defined in accordance with the municipal law. But in accordance and within the limitations of the International law a state is free to choose among whom it may select and reject as nationals. These limitations were prescribed in the International Law not for the interest of the individuals but for the interest of the other states.

Nationality is the source through which an individual can enjoy benefits from the International law. State exercises jurisdiction over its nationals travelling or residing abroad, these remain under is personal supremacy. International law permits and sets the limit of the exercise. (Mavrommatis case). The right of protection extends to the property of the nationals as well. The refusal to receive and expulsion of a State’s own nationals are inconsistent with International law as they may evolve burden on other states which they are not bound to undertake. Therefore it is inconvenient for International law to permit the individuals to have multiple nationalities or no nationality at all. It is a goal of International law that each individual possesses a single nationality.

Loss of Nationality under International Law

There are several ways in which a person may lose nationality in various ways. Such as:-

By release: –

Some states give their citizens the right to give away their own nationality. The release can take place only after the process of an application is made to the effect, and if it has been accepted by the State concerned.

By deprivation: –

A national of a state may be deprived of a nationality in few cases. The cases are as follows if a citizen enters into foreign civil or military service without permission, he will be deprived of his nationality. According to Article 10 of Indian Citizenship Act 1955 for deprivation of citizenship by an order of the Central Government it is thus satisfied: [3]

• registration or certificate of naturalization has been obtained by means of fraud ,false representation or concealing of material fact.
• If the person has been disloyal or disaffected to the Union of India by an act or speech
• Done by prejudicial act or traded with an enemy while India is at war with that country.
• A national or a registered citizen has been sentenced to any country to a term of two years to five years from the date of registration.
• If the person has continuously resided in a foreign country for seven years or more without being a student, Central Government employee or international Civil Servant in any organization recognized by India and also has not registered himself at an Indian Consulate.

• Before depriving a person from citizenship, the Central Government is required to give a written notice mentioning the ground for which the action is taken. Central Government in some cases may refer the case of deprivation of citizenship to a Committee of inquiry consisting of a chairman and two other members.

By renunciation: –

The question of renunciation may arise when a person acquires nationality in more than one state. [4]

By substitution: –

A person may lose the nationality of a State when he acquires the nationality in some other state by naturalization. Its purpose is to ensure no person has dual citizenship. In such cases, nationality of a person is substituted from one state to another state. However, the above provisions do not apply to a citizen of India who during any war in which Indians maybe engaged, voluntarily acquires the citizenship of another country until the Central government provides otherwise.

By expiration: –

A person may lose nationality of a state by expiration. Some states have provided by legislation that citizenship expires in the case in such of their subjects as they have left their own country and stayed abroad for a certain length of time.

When a person does not possess the nationality of any state, that person is known as a stateless person. A person maybe without nationality knowingly or unknowingly, intentionally or through no fault of his own. When an illegitimate child[5] is born in a state which does not apply jus soli[6] to an alien mother under whose national law the child does not acquire his or her nationality or where a legitimate child is born in a state to parents who does not have their own nationality. All individuals who have lost their nationality without having acquired another are, in fact, stateless. Such a situation may arise due to lack of uniformity in municipal laws of different states with respect to the determination of nationality.

A stateless person does not enjoy those rights which are conferred to a person in the International law. They are also refused enjoyment of rights which are dependent on reciprocity. Further there are more rights such as personal capacity, family rights, matrimonial regime and succession to property which an individual cannot enjoy in a normal way so long as his or her personal status which determines these rights are doubtful. In order to eliminate the position of a person from becoming stateless or reducing statelessness, the states must take the initiative. The proper way to eliminate statelessness is to impose on states obligations to accord their nationality to all persons born within their territory. They should not deprive the nationality of persons unless nationality of person unless nationality of other states has been acquired.

[1] (2020). Retrieved 27 December 2020, from https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1133&context=cilj

[2] The Object Theory of the Individual in International Law on JSTOR. (2020). Retrieved 27 December 2020, from https://www.jstor.org/stable/2194499

[3] Indian Citizenship Act. (2020). Retrieved 27 December 2020, from https://en.wikipedia.org/wiki/Indian_Citizenship_Act

[4] AGARWAL, D. International human rights law.

[5] Team, C. (2020). Illegitimate Child – Definition, Examples, Cases, Processes. Retrieved 27 December 2020, from https://legaldictionary.net/illegitimate-child/

[6] Jus soli. (2020). Retrieved 27 December 2020, from https://en.wikipedia.org/wiki/Jus_soli

Author Details: Atrayee Chatterjee