Nationality and the sovereign state

Nationality in a historic perspective is a somewhat new phenomenon. Replacing the traditional system of overlord and subject (Cassuto 2001: 41; Hansen & Weil 2001: 34 ff.), nationality can no longer be determined as a personal relationship of allegiance, but rather as a legal status embracing a set of mutual rights and obligations towards a political entity fulfilling certain requirements necessary for the existence of a sovereign state. Sovereign powers, a defined territory and the existence of a nation are generally considered necessary conditions for the existence of a state in the sense of public international law, entrusted with the competence and sovereign powers attributed to states.

Philosophical and social perception of what constitutes a nation may be different. Nationhood may not require statehood, but there is no statehood without a nation consisting of nationals and territorial sovereignty.

Under traditional international law of the nineteenth century, a 'right to exclude others' and to defend the territory of the nation from external aggression has been a predominant element of nationality. In a more modern understanding, the term 'nationality' defines the status of membership to a community based upon a common history, culture, ethnicity and common political convictions or values.

History teaches that the building of a nation as a political community, constituting a sovereign state, may well be based upon only some of these criteria. It follows that there is no generally recognised concept of nationality as the expression of membership of a political community.

Even nations based upon a common ethnic origin will incorporate other criteria for membership and states based upon common political convictions and ideals, such as the republican 'citoyen', will require additional conditions for admission to the nation. Nationality as the expression of membership of a nation as a political community, therefore, is by and large the product of fairly fortuitous developments. This explains why public international law has very little to say about the scope and limits of a state's determination of nationality. Nevertheless, nationality has very important functions as a determining factor in international relations.

Nationality determines the scope of application of basic rights and obligations of states vis-a' -vis other states and the international community, such as personal jurisdiction, the application of treaties and diplomatic protection. In domestic law, nationality is a fundamental requirement for the exercise of political rights and claims to protection and correlate duties, such as military or civil service obligations, which may, however, vary according to national law. The International Court of Justice in the famous Nottebohm case has described nationality as a 'legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with that of any other state.'l The German Constitutional Court has described nationality as a legal status describing membership of a political community: 'Nationality is the legal requirement for an equal status implying equal duties on the one hand, equal political rights on the other hand, the exercise of which is the exclusive source of legitimacy of power in a democracy.'2 Nationality as a determining factor in international relations is closely related to the concept of the sovereign state. With a changing perception of sovereignty as a result of a globalised interdependent world and international regimes, nationality has lost much of its delimiting function. Nationality can no longer be considered the only and exclusive legal bond between an individual and a home country. Although there are as yet no indications for a 'post-national' or 'trans-national' nationality, there are clear indications that states increasingly recognise that there may well be more than just one membership of a political community. The increasing number of dual nationals and the changing attitude of states dealing with multiple nationality indicates a change in traditional perceptions of nationality.

The state, in addition, has ceased to be the only protector of an individual's rights. There are a variety of international conventions and treaties providing for an individual right to file a complaint before international bodies against the violation of human rights at regional as well as universal level. The concept of diplomatic protection, based on the fiction of states asserting their own rights by protecting their nationals has therefore been criticised as obsolete (Garcia-Amador 1958: 421, 437). Dugard, in his first report on diplomatic protection, has rightly criticised this assumption as exaggerated. The exercise of diplomatic protection by a state for its nationals is still an indispensable tool for effectively enforcing an individual's rights, including his human rights against another state. Diplomatic protection may not only be more effective at international level than a complaint before an international body. It may in many cases be the only effective instrument for enforcing an individual's human rights. Here again, nationality has not lost its essential function as a legal requirement of a state to exercise diplomatic protection, although under exceptional circumstances diplomatic protection may be extended to non-nationals (see Dugard 2000: 11, 57).

European Union citizenship, in addition, has contributed to a somewhat changed perception of nationality. The concept of citizenship is usually described as a gradual substitution of important elements of the nationality of the Member States. Union citizenship is no longer limited to economic freedoms, but already implies - although to a limited extent - political rights and a right of residence, which is becoming increasingly independent from traditional requirements of alien law. Whether the assumption is true that Union citizenship has partly replaced the nationality of the Member States of the European Union will be examined in section 1.6.

In spite of globalisation and the approximation of political and social systems, the assumption of a rapid decline of the concept of nationality and its replacement by a 'post-national' or 'trans-national' nationality has so far not been reflected in the states' practices. One reason for this may be the unexpected rise of ideologies and religions as attributes of states and nations, which has increased the traditional function of nationality as an element of exclusion and defence against external influences of all kinds and intervention.