Nationality and Refugees

Nationality is the legal bond between an individual and a State, entailing reciprocal rights and duties and enabling the State to exercise diplomatic protection. Nationality is within domestic jurisdiction (Nationality Decrees in Tunis and Morocco, PCIJ 1923), but international law limits its effects. Hague Convention 1930, Art 1: each State determines under its own law who are its nationals; other States recognise this only if consistent with international conventions, custom and generally recognised principles.

Nottebohm Case (Liechtenstein v Guatemala, ICJ 1955): Nottebohm, a German national, naturalised in Liechtenstein shortly before WWII. ICJ held nationality must rest on a ‘genuine link’ (a real connection of existence, interests and sentiments); Guatemala was not obliged to recognise Liechtenstein’s claim. The test is applied mainly to diplomatic protection, not nationality per se.

1. Birth: jus soli (place of birth – USA, Canada); jus sanguinis (descent – Germany; India for children of Indian citizens abroad).

2. Naturalisation (residence, marriage etc.).

3. Registration and option.

4. Subjugation and cession (collective naturalisation), annexation, restoration.

5. Legitimation, adoption, marriage.

Loss: renunciation, deprivation, long residence abroad, acquiring another nationality (India – Citizenship Act 1955, s. 9), release, substitution.

• Dual nationality: Canevaro Case (Italy v Peru, PCA 1912); Mergé Case (1955) – effective nationality principle. Hague Convention 1930, Arts 3–5. India does not permit dual citizenship (OCI is not citizenship).

• Statelessness: 1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; UDHR Art 15 (‘Everyone has the right to a nationality’); ICCPR Art 24(3). India is not party to either statelessness convention.

• Women’s nationality: 1957 Convention on Nationality of Married Women; CEDAW Art 9.

• Barcelona Traction (Belgium v Spain, 1970): the State of incorporation (not of shareholders) has standing to protect a company; exceptions limited. ELSI (USA v Italy, 1989); Ahmadou Sadio Diallo (Guinea v DRC, 2010) – protection of shareholders’ direct rights.

• Exhaustion of local remedies (Interhandel) is a precondition; continuous nationality rule. ILC Draft Articles on Diplomatic Protection 2006.

• Mavrommatis Palestine Concessions (1924): the State taking up a national’s case asserts its own right.

• Consular access: LaGrand (2001), Avena (2004), Kulbhushan Jadhav (India v Pakistan, ICJ 2019) – Pakistan breached Art 36 VCCR; ordered effective review and reconsideration.

• Constitution Arts 5–11; Citizenship Act 1955 (birth, descent, registration, naturalisation, incorporation of territory); Citizenship (Amendment) Act 2019 and Rules 2024; Section 6A (Assam Accord) upheld by the Supreme Court in October 2024 (4:1).

1951 Convention relating to the Status of Refugees (in force 22 April 1954) and 1967 Protocol:

• Art 1A(2): a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of nationality and unable or unwilling to avail himself of its protection.

• The 1951 Convention was limited to events before 1 January 1951 (with an optional geographical limitation to Europe); the 1967 Protocol removed both limits.

• Exclusion (Art 1F): crimes against peace, war crimes, crimes against humanity; serious non-political crime; acts contrary to UN purposes. Cessation (Art 1C). Art 1D: Palestinian refugees receiving UNRWA assistance.

• Art 31: no penalties for illegal entry if coming directly from a territory of threat and presenting promptly to authorities.

• Art 33: Non-refoulement – no Contracting State shall expel or return a refugee to frontiers of territories where life or freedom would be threatened. Art 33(2): exception for refugees who are a danger to security or convicted of a particularly serious crime. Non-refoulement is customary international law and by many regarded as jus cogens; also found in CAT Art 3 and ECHR Art 3 (Soering, Chahal).

• Regional instruments: OAU Convention 1969 (broader – includes external aggression, occupation, foreign domination, events seriously disturbing public order); Cartagena Declaration 1984 (Latin America); Bangkok Principles 1966 (AALCO).

• UNHCR: established by UNGA Res 428(V) of 14 December 1950; began work on 1 January 1951; HQ Geneva; Nobel Peace Prize 1954 and 1981. UNRWA (UNGA Res 302(IV), 1949) serves Palestinian refugees.

• Global Compact on Refugees (2018) – non-binding; Global Compact for Safe, Orderly and Regular Migration (2018); New York Declaration (2016); Global Refugee Forum (2019, December 2023).

• Internally Displaced Persons (IDPs): not refugees; Guiding Principles on Internal Displacement (1998); Kampala Convention 2009 (AU – first binding IDP treaty).

• Historic: Nansen Passport (1922), League High Commissioner Fridtjof Nansen, IRO (1946–52).

• India is not a party to the 1951 Convention or 1967 Protocol and has no national refugee law; it relies on the Foreigners Act 1946, Registration of Foreigners Act 1939, Passport (Entry into India) Act 1920 and executive discretion. India is a member of UNHCR’s Executive Committee and has hosted Tibetans (1959), Bangladeshi refugees (1971), Sri Lankan Tamils, Afghans, Chakmas and Rohingya.

• NHRC v State of Arunachal Pradesh (1996): Chakma refugees – Article 21 protects all persons, including foreigners.

• Ktaer Abbas Habib Al Qutaifi v UOI (Gujarat HC, 1999) – non-refoulement implicit in Article 21; Zothansangpuii v State of Manipur (Gauhati HC, 2012).

• Mohd Salimullah v UOI (2021) – Supreme Court declined to stop deportation of Rohingya; Hans Muller of Nuremberg v Superintendent, Presidency Jail (1955) – the Government’s power to expel foreigners is absolute under the Foreigners Act.

• Recent: Citizenship Amendment Act 2019 (religion-based criteria; challenged under Art 14); the Immigration and Foreigners Act 2025 replaced the 1946 Act and related laws.

• Refugee vs asylum seeker vs migrant: a refugee has been recognised; an asylum seeker awaits determination; economic migrants fall outside the 1951 definition.