“Acquisition and Loss of Citizenship: Introspection Into International and National Legal Positions” by Jonathan Abotiwine Alua

  1. INTRODUCTION

This article seeks to discuss the various ways in which nationality can be acquired and ways in which it can be lost. The discussion is situated in the local or national context and the international context, thus it is divided into two parts. The international perspective of nationality forms the first part of the article while the second part covers the local or national perspective of nationality as held by sovereign nations. An effort is made to draw parallels between the two before the conclusion of the article.

  1. CITIZENSHIP AND INTERNATIONAL LAW

Nationality is generally understood as the legal bond that connects a person to a particular State. It constitutes his membership in the particular State. It makes him a national (or a citizen in the point of view of municipal law) of that State. Nationality creates reciprocal obligations between the citizen and the State. It imposes upon the citizen the duty to render allegiance to the State and subjects him to the obligations created by the laws of that State. Thus, it is the basis of the State’s exercise of jurisdiction over the person. On the part of the State, nationality imposes the responsibility to protect the citizen. It also gives the State the right to accord diplomatic protection to its nationals and to make claims on their behalf.[1] In instances where succession has occurred, the dynamics play out a little differently. Succession may refer to the transfer of rights, obligations, and/or property from a previously well-established prior state (the predecessor state) to the new one (the successor state).  In principle, the issue of nationality in such instances will depend upon the municipal regulations of the predecessor and successor States. The laws of the former will determine the extent to which the inhabitants of an area are to be ceded to another author will retain their nationality after the change in sovereignty. The laws of the successor State, on the other hand, will prescribe the conditions under which the new nationality will be granted. The general rule would appear to be that nationality will change with sovereignty, although it will be incumbent upon the new sovereign to declare the pertinent rules with regard to people born in the territory or resident there, or born abroad of parents who are nationals of the former regime. Similarly, the ceding State may well provide for its former citizens in the territory in question to retain their nationality, thus creating a situation of dual nationality. This would not arise, of course, where the former State completely disappears.[2] It seems to be settled a position at international law that nationality is a political right that a sovereign State gives to its constituent individuals. It must be noted that Article 15 of the Universal Declaration of Human Rights (UDHR) says “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Most articles of the UDHR are considered customary international human rights law.[3] This imposes a burden on States to, as a matter of obligation; ensure that individuals are entitled to the status of citizens of a particular State. Acquisition of citizenship is subject to the laws of individual sovereign States. The commonest means of attaining citizenship is by birth. People who are born within the confines of a sovereign area are thus entitled by law to citizenry status. As international law is built on the foundations of sovereign independence, nations are at liberty to vary their laws in respect of modes of acquiring citizenship. In the Nottebohm case, the International Court of Justice (ICJ) ruled that the Principality of Liechtenstein is the sole judge of whether Nottebohm is a citizen of the State but this is for domestic law purposes only, since other nations are not obliged to recognize Nottebohm’s Liechtenstein citizenship especially in the absence of a genuine link between Nottebohm and that State[4].  Article 2 of The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws further affirms the point that nations are exclusively entitled to determine the laws relating to acquisition and loss of nationality. In the USA for instance, birth automatically entitles one to citizenship. In the UK however, birth within the territory does not automatically entitle one to citizenship status. There is therefore no centralized international code that prescribes how nations should ensure the realization of the right to citizenship as enshrined in the UDHR. International bodies have, in recent times, made the effort to expand the scope and meaning of citizenship beyond national territorial space. The treaty of European Union, adopted in Maastricht in 1992, made it an objective for the Union ‘to strengthen the protection of the rights and interests of the nationals of its member States through the introduction of a citizenship of the Union’. Like national citizenship, EU citizenship refers to a relationship between the citizen and the European Union which is defined by rights, duties and political participation. This is intended to bridge the gap between the increasing impact that EU action is having on EU citizens, and the fact that the enjoyment of rights, the fulfillment of duties and participation in democratic processes are almost exclusively national matters. The aim is to increase people’s sense of identification with the EU and to foster European public opinion, a European political consciousness and a sense of European identity.[5] EU citizenship is thus automatically acquired as far as you are a national of a State party to the EU treaty. It is fair to conclude that the customary law position regarding the mode of acquisition of citizenship is the law as exercised by sovereign States. Correspondingly, as this status is political, the loss of citizenship is also determined by the laws of the State in question. I will therefore shift our discussion into the context of nations with emphasis on Ghana to determine how citizenship and acquired and lost by the laws of this sovereign State.

 

  1. CITIZENSHIP AND NATIONAL LAW

 

3.1 ACQUISITION

The mode of acquiring citizenship, as already stated, is the exclusive reserve of the legislature of the sovereign State. In Ghana, the Citizenship Act, 2000, Act 591 is the source of all the principles regarding the attainment and loss of citizenship. The principles under which Ghanaian citizenship law is modeled are the jux soli, jux sanguinis, adoption and naturalization. Anyone born in Ghana is by law entitled to Ghanaian citizenship. This includes foundlings, that is, children below the age of seven within the territory.[6] A person who not born in Ghana could also become a citizen by naturalization provided he meets the requirements of the law.[7] A child of not more than sixteen years of age neither of whose parents is a citizen of Ghana who is adopted by a citizen of Ghana shall be entitled to Ghanaian citizenship by virtue of the adoption[8] The laws of Ghana also allow for acquisition of citizenship by marriage.[9] Therefore a person could apply for and be granted citizenship by virtue of marriage.

 

3.2 LOSS OF CITIZENSHIP

The loss of one’s citizenship”, just as its acquisition is a matter of law. It hinges on the State’s legislation. Under Ghanaian law, citizenship could be voluntarily lost or involuntary taken away. There is therefore the case of renunciation of citizenship and that of deprivation. The relevant provisions of the Citizenship Act of Ghana are reproduced below.

Section 17—Renunciation of Ghanaian Citizenship

(1) If any citizen of Ghana of age and capacity who is also a citizen of another country makes a declaration of renunciation of citizenship of Ghana, the Minister shall cause the declaration to be registered; and upon the registration, that person shall cease to be a citizen of Ghana.

(2) Where the law of a country requires a person who marries a citizen of that country to renounce the citizenship of his own country by virtue of that marriage, a citizen of Ghana who is deprived of his citizenship of Ghana by virtue of that marriage shall, on the dissolution of that marriage, become a citizen of Ghana.

Section 18—Deprivation of Citizenship

The High Court may on an application by the Attorney-General for the purpose, deprive a person who is a citizen of Ghana, otherwise than by birth or adoption of that citizenship on the ground—

(a) that the activities of that person are inimical to the security of the State or prejudicial to the public morality or the public interest; or

(b) that the citizenship was acquired by fraud, misrepresentation or any other improper or irregular practice.

The distinction between the two forms of loss of citizenship is the element of will. In the case of renunciation, the individual is moved by his or her own volition to part with Ghanaian citizenship. This may be direct or indirect.  In the case of deprivation however, the individual’s citizenship is stripped off that person. Another distinction is the fact that only some categories of citizens can be deprived of their citizenship. This is however not the case in renunciation of citizenship as everyone is at liberty to renounce their citizenship.

  1. CONCLUSION

Citizenship, if understood as a right in the full sense of the word, is not absolute. This is the philosophy behind the fact that although one is entitled to it, it could be lost. It is a universally appreciated position of the law that human rights are not absolute and are altered, modified and restricted in some circumstances where the need arises.  The link between international law and municipal law in respect of citizenship is quite formidable. The realization of one’s status as a citizen is inextricably woven into the foundation principles of international law. There is therefore the need for consolidation of international treaties on the subject matter. Where the laws of countries do not provide for the citizenship of an individual, the phenomena of Statelessness arises. The problem that international law does not indicate which State is responsible in any given instance of Statelessness, has been addressed by two international treaties on children: the UN Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child. Both of these treaties address a specific population, children who are born on the territory of a State who would otherwise be Stateless. Both are very widely ratified (only the US and Somalia have yet to ratify the CRC, and in Africa 45 of 53 States have ratified the African Children’s Charter). Regardless of the fact that these treaties deal with only children, if they are implemented, or in the alternative if all other treaties on nationality and citizenship are consolidated and streamlined in the direction of these two treaties, Statelessness would be under the carpet in due time. Citizenship can be gained and lost according to the rules of nations. This position is not problematic; the problem lies in disharmony in the laws across nations. That actually, is a universal problem.

 

 

 

 

 

[1] https://attyralph.com/2015/12/03/foundlingsnationality/

[2] Malcom Shaw, International Law p 908

[3] http://africanarguments.org/2009/10/12/the-right-to-citizenship-under-international-law/

[4] Nottebohm case (Liechtenstein v. Guatemala) [1955] ICJ 1

[5] http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_2.1.1.html

[6] Section 8, Citizenship Act, 2000, Act 591

[7] Section 14, Citizenship Act, 2000, Act 591

[8] Article 6(4), 1992 Constitution of Ghana

[9] Article 7(1), 1992 Constitution of Ghana