Concept of Domicile and Nationality under Private International Law

Author: Yuvanshi Kulshreshtha, 3rd Year, B.A. LL.B. (Hons.), Jagran Lakecity University, Bhopal.

The article has been written by the author while pursuing the internship programme with us.

Introduction

In the past decade, legal commentators across the globe have observed a significant integration of legal institutions with the help of harmonisation of laws. International Law has been one such instrument of integration. Two of the important components of Private International Law which help in the integration are: the law of nationality (lex patriae) and the law of domicile (lex domicilii). Both nationality & domicile are a means to provide protection to the person by the state and in return, certain obligations are imposed on the person towards the State. Nationality implies obedience. Whereas, domicile, is considered to be a connecting factor which links a person with a particular legal system. It is a ‘habitual residence’.

Concept of Domicile

Domicile is the identification of a person to one system of law.[1] In common parlance, it means a place where a person resides with the intention of remaining there indefinitely. The concept of domicile is derived from Roman law. The term domicilium comes from domum colere which means to inhabit. Domicile is not just a place of residence rather it is a place of habitual residence[2].

This concept has also evolved significantly via a plethora of judgments. Lord Westbury remarked in Udny v Udny[3]: “That no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of his father if the child is legitimate, and the domicile of the mother if illegitimate.”

Determination of Domicile

Determination of Domicile of Children

In common parlance, legitimacy means the status acquired by a person who is born to parents who are married to one another at the time of the birth of the child. Thus, if a child is legitimate the simple rule is that his domicile follows the domicile of his mother. In other words, his domicile of origin is determined by the domicile of his father irrespective of the place of birth of the child. So, for instance, if child A is born to father B who has an English domicile, the child would also acquire English domicile as soon as he is born. Later in life, the child can acquire a domicile of choice after he becomes independent and wishes to do so and can also abandon it without acquiring a new one.. Thus, in Grant v. Grant [LC 2002 HC 30], a child was born in India but his domicile of origin was held to be English following his father’s domicile of origin. However, a legitimate child born after his father’s death shall acquire his mother’s domicile. An illegitimate child’s domicile is determined after his/her mother’s domicile. Thus, for instance, A is an illegitimate son of mother B. B has a Canadian Domicile. A would also acquire Canadian Domicile. In case a child is abandoned, his domicile of origin would be the country in which he was found. Thus, it is clear that a person receives at birth a domicile of origin which it appears is determined as follows:’

  • A legitimate child born during the lifetime of his father has his domicile of origin in the country of his father’s domicile at the time of his birth;
  •  A legitimate child born after his father’s death, or an illegitimate child, has his domicile of origin in the country of his mother’s domicile at the time of his birth; and
  • a foundling has his domicile of origin in the country in which he is found.

Determination of Domicile of Married Women

A woman on marriage acquires the Domicile of her husband and this domicile remains in force until the marriage is terminated by the death of either spouse or by a dissolution that is recognized in this country. For example a woman born and at all times domiciled in India marries a man domiciled in France. Her domicile immediately becomes French even if she may have lived in France. If her husband subsequently moves to Canada, she will acquire domicile in Canada whether or not she lived there. As per Section 16 of the Indian Succession Act, 1925 lays down that a wife’s domicile during her marriage follows the domicile of her husband.

Principles Governing Law of Domicile

There are four fundamental universal principles which govern the law of domicile:

  • Nobody shall be without a domicile– This simply means that the domicile of origin is acquired by each and every person by virtue of his/her birth and it does not terminate unless the person acquires a new domicile. For example, A is born to father B. B has a Canadian Domicile. A shall automatically by virtue of his father’s domicile acquire Canadian Domicile which shall remain in effect till A’s death or till the time A decides to acquire domicile by choice. Thus, as soon as a person is born he is entitled to a domicile. This is how no one remains without a domicile.
  • A person cannot have two domiciles at a time– It means that a person cannot have more than one domicile certificate. For example, A has Canadian domicile by virtue of his father’s Canadian Domicile. A shall have only Canadian Domicile and no other till the time he gives up his Canadian Domicile and acquires another domicile of his choice.
  • Domicile connects a person with only one system of territorial law- Domicile links a person with a single nation. In the example quoted above, A is linked to the country Canada. That is he is entitled to certain rights and duties which Canada confers upon him.
  • There is an assumption that an existing domicile continues- This principle is based on the character of tenacity of domicile. A domicile conferred by birth continues until the person acquires another domicile by choice. In the example quoted above, if A at a later stage in life (after attaining the age of majority) wishes to give up his Canadian Domicile and instead acquire British Domicile he can do so. Thus, his Canadian domicile shall continue to exist as long as he does not intend to acquire another domicile.

Kinds of Domicile

There are three kinds of domicile: domicile of origin, the domicile of choice or necessary domicile, and domicile by operation of law[4].

Domicile of origin is the concept that a person shall have domicile of his place of birth unless he obtains another domicile of his choice of some other place. It has two features: tenacity and persistence. In Grant v. Grant,[5] a child was born in India but his domicile of origin was held to be English following his father’s domicile of origin. It illustrates that domicile of origin is the most difficult to lose among all the other types of domiciles.

Domicile of Choice- Any person not legally dependent on another may acquire for himself/herself a domicile of choice by means of physical residence in a place. This is the domicile of choice. In Plummer v. IRC[6], a taxpayer had English Domicile of Origin. However, she spent three months every year in Guernsey which was her home town. It was held that despite her English Domicile of Origin, she could acquire the Domicile of Choice in Guernsey if she was able to prove that Guernsey was her main habitual place of residence. Domicile by operation of law is the one that is imposed by law on a person without taking into consideration his choice or residence. Thus, an individual’s choice is not taken into consideration. For example: when the parents of a child change their domicile, the domicile of the child will also get changed by the operation of law.

Concept of Nationality

Several definitions describing the concept of Nationality have been discussed by Scholars. However, the simplest and at the same time the most comprehensive definition is given by Hosseini, Arya & Ahmadi: Nationality is a political, legal and spiritual relationship that links an individual to a state[7]. In Castillo Petruzzi et. al. v. Peru IHRL 1442 (IACHR 1999), nationality was defined as “The political and legal bond that links a person to a given State and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that State.”

Principles Governing Law of Nationality

  1. Everyone should have a nationality (negation of statelessness)- One important aspect of the law of nationality is that every person should belong to a particular nationality. If every person shall belong to a particular nation-state, this would help in eliminating the problem of statelessness. This further ensures protection and enjoyment of fundamental rights which have been discussed in the latter part of the article.
  2. Having not more than one nationality (negation of dual nationality)- It is usually observed that people acquire dual nationality. It is, however, found that dual nationality has a negative effect on the assimilation, political connectedness and social integration. Not only this person with dual nationality are often identified as people with dual allegiance or loyalty who have the potential to act contrary to the government’s interests. Due to all such issues, it is recognized as an established principle of the law of nationality that seeking dual citizenship is discouraged. International law, in order to avoid problems arising out of the concept of dual nationality, recognizes the concept of “dominant and effective nationality”, under which a dual national will hold only one dominant and effective nationality for the purposes of international law to one nation that holds their primary national allegiance, while any other nationalities are subordinate.
  3.  The right to change nationality.[8]The right to nationality is recognised as a fundamental human right. This includes the right of each individual to acquire, change and retain a nationality.

Legal Effects of Nationality

  1.  In International law, nationality causes the individual to have the political protection of his/her state of nationality. States can provide their own nationals with political protections in the international arena and nationals of a state include natural and legal persons by conferring certain fundamental rights. This is done by exercising diplomatic protection which is a mechanism of international law that is still employed by States to secure just treatment for their nationals abroad. Apart from diplomatic protection, Convention on the Settlement of Investment Disputes between States and Nationals of the Other States, 1965, and a myriad of bilateral investment treaties facilitate the protection of foreign nationals. For example, the recent case where Indian Wing Commander Abhinandan Varthaman was held captive in Pakistan. His release was called a peace gesture by Pakistan. However, it is likely that the Geneva Conventions regulating the conduct of armed conflicts and protecting civilians, health and aid workers applied.
  2.  Another legal effect of nationality is the benefits a nation provides to its nationals. In private international law, the law governing the individual’s personal status such as capacity, marriage, heritage and personality is determined by nationality by the help of the personal laws and several statutes, acts and codes which have been legislated to govern such personal status. Like in India, marriages among Hindus are governed by the Hindu Marriage Act, 1955. Right of nationality is a right to have rights. Nationality provides its citizens with public benefits, welfare, healthcare, retirement funds, job opportunities, education, housing, access to the courts, and public relief, among other rights.

Nationality & the Problem of Statelessness

“Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.[9]” With those laconic statements, Article 15 of the UDHR confers upon every individual the right to be a citizen of a State. Despite sufficient international law relating to citizenship, millions of people around the world still have no nationality. They are stateless. There are approximately eleven million people around the world who are stateless according to a recent report[10]. But this number is just an estimate. It has been very difficult for organizations to collect exact data on the number of stateless persons because governments are often not reluctant to disclose information about statelessness[11].

Article 1 (1) of the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law’. The 1954 UN Convention on Status of Stateless Person identifies who is a stateless person and ensures that stateless persons enjoy fundamental rights and freedoms without discrimination. One inference that can be drawn from this definition is that if a person needs to prove himself stateless he has to prove a negative: that he/she has no legal bond with any country.

Suggestions for overcoming this problem

  1. Every nation determines who its nationals are under its own law. This law must be consistent with international conventions and customs pertaining to questions of nationality. Possession of an updated collection of nationality laws on the part of the States is yet another important step. Further, the States should understand the implementation of such laws in order to resolve conflicts of law involving nationality[12].
  2.  According to Article 7 of 1961 Conventions on the Reduction of Statelessness, loss or renunciation of nationality should be done only after the person has acquired the nationality of another state. This will again reduce statelessness.
  3.  When registering births, States should identify cases of disputed nationality and should grant citizenship if they find that such a person would become stateless.
  4.  Parliamentarians can also help to reduce or eliminate the incidence of statelessness by adopting national legislation that is in consonance with international law. Relevant provisions (Article 6, Article 9 & Article 10) of the 1961 Convention on the Reduction of Statelessness can be incorporated into national legislation.
  5.  Parliamentarians can also act as “watchdog” by ensuring that the legal framework of their State does not deliberately render individuals stateless[13].

Conclusion

Private international law is a branch of law that deals with a person’s individual relationship with another person as well as the states outside the domestic territory. It includes nationality, domicile and the conflict of laws. Nationality is a bond that links an individual to a state in order for him/her to seek political and international protection of that state. Domicile is a person’s “habitual residence”. There are important principles of domicile. Everyone is born with a domicile of origin which is persistent and difficult to lose. Another kind of domicile is the domicile of choice which can be acquired by a residence with an intention to reside for an indefinite period.

There are individuals who are not considered as nationals by any states. Although one of the principles of nationality is that everybody should have a nationality, many cases have been reported where individuals have no nationality leading to Statelessness. Statelessness brings unfavourable effects and numerous problems for individuals like deprivation from social and political rights and deprivation from the states’ protection. However, it should be noted that international treaties have been brought in with the object to eliminate statelessness. Few suggestions and measures to combat this problem have been listed above.


REFERENCES:

[1] N.Roja Rani, Analysis on Law of Domicile, (May 5, 2020, 01:29 PM), https://www.alsi.edu.in/images/conflit-of-law.output.pdf.

[2] Whicker v. Hume (1858) 10 HLC 124.

[3] (1869) LR 1 HL 441. [4] State Election Bd. v. Bayh, 521 N.E.2d 1313.

[5] LC 2002 HC 30.

[6] (1987) STC 698

[7] 1 IRFANIYA B, PRIVATE INTERNATIONAL LAW: CONFLICT BETWEEN LAWS AND COURTS 39, Behtab Publication, 1997 as cited in Seyyed Ibrahim Hosseini, Ako Arya and Mehran Ahmadi, Nationality in Private International Law, 8(12) IJST 1, 2 (2015), https://www.researchgate.net/publication/283163666_Nationality_in_Private_International_Law.

[8] Id.

[9] Article 15, Universal Declaration of Human Rights, 217A (III) (1948), https://www.refworld.org/docid/3ae6b3712c.html.

[10] Nationality and Statelessness: A Handbook for Parliamentarians, UNHCR, (2005) (May 2, 2020, 02:45 PM), https://www.un.org/ruleoflaw/files/Nationality%20and%20Statelessness.pdf.

[11] Supra note 10.

[12] Supra note 10, at 32. [13] Supra note 10, at 52.


DISCLAIMER: Views and opinions as expressed in the Research Articles are solely of the author and any member of the core team of the website shall not be liable for the same.

Related posts