Międzynarodowe aspekty obywatelstwa
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Date
1984
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Wydział Prawa i Administracji UAM
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Aspects of nationality in international law
Abstract
Citizenship as a relationship of individual and State developed in Europe at
the end of 18 century. There is a controversy in the doctrine whether it is an
institution of international or internal law. I general two aspects of the institution can be differentiated — citizenship in a sphere of internal law and nationality
in the sphere of international law.
A general principle was adopted in international practice that each state can
freely regulate its nationality, the liberty of that regulation is however limited by
international law, especially by customary norms.
Existence of nationality is not related to passing a relevant act of internal law
by a State nor is the method of regulation adopted in a given State significant.
In practice there are two basic means formed of acquisition of nationality
at a moment of birth: according to ius soli or ius sanguinis. A possibility of
naturalization is also warranted by respective legal systems, while acquisition and
loss of nationality by means of legal transactions of private law is of a slight
importance. Basic means of a loss of nationality are: renouncement and- in exceptional,
precisely defined situations in internal law of respective states deprivation
of nationality. Application of those institutions can presently be limited by
provisions of international law concerning protection of human rights and and
precluding cases of dual nationality and statelessness.
Nationality is an individual status. Change of nationality related to change
of sovereign of a given State (succession of states) is of an exceptional character.
There was a principle developed in practice that persons inhabiting an area which
is changing its sovereign and possessing nationality of his predecessor are automatically
loosing their previous nationality and acquiring the nationality of the
successor. A duty to guarantee the option is not adoptod in modern international
law.
Conflicts of legislations on nationality of many states can result in dual
nationality or statelessness. Presently actions are undertaken in order to eliminate
those situations and diminish their effects. In practice, a person posessing a dual
nationality is treated by the third state as a national of one state only. Stateless
persons are granted a minimum standard of treatment by the international
agreements.
The international practice, especially the ICJ decision in the case of Nottebohm
confirmed the existence of customary norm providing that an effective relation of
an individuai and a State is a prerequisite of effective acquisition of nationality
by persons nationals of only one state. That requirement is to preclude fictitious
granting of nationality and to secure international community against infringement
of international law and abuse of nationality for illegal goals.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 46, 1984, z. 3, s. 95-113