In Defense of the Theory of Nationality: A Rebuttal Speech

Ladies and gentlemen, dear opponents, esteemed adjudicators, allow me to start this speech by stating that the Theory of Nationality is a well-entrenched doctrine in the realm of Private International Law. It is one of the predominant systems in the world being used to bridge the connection between an individual and a particular state. As stated, private international law disputes are primarily classified into two types, one of which includes those disputes which concern persons, their status and capacity. Needless to say, personal law determines, if not governs, the judgment and eventual resolution of cases which fall under this class of disputes. Now more than ever, the legal position of an individual should be determined by the law of the state with which he is deemed to be connected in a permanent way. We, at the affirmative side, strongly believe that nationality should form the basis of our personal laws. We, at the affirmative side, restate: we are for the nationality theory of personal law.

The affirmative side emphasizes the two main advantages of applying nationality in conflicts cases. These are, namely: (1) Easier assumption of legal personality in the forum hence easier process of determining jurisdiction and decisions on cases; and (2) Affirmation that states have jurisdiction over their nationals hence providing a ‘sense of security’ both for the state and for the person.

The negative side, on the other hand, stresses the following disadvantages of applying nationality in conflicts cases: (1) It fails to account the cases of persons with multiple nationalities; and (2) It does not solve the predicament of stateless persons in conflicts cases. These points are worth discussing.

On the matter of multiple nationalities, a number of States solve this difficulty by applying the principle of effective nationality. In principle, nationality as a term of local or municipal law is usually determined by the law of particular state. Each state has discretion of determining who is and who is not, to be considered its nationals. But in a case where a dual national is involved in a dispute in some third state, the third state is entitled to judge which nationality should be recognized. This is the principle of effective nationality which still falls under the theory of nationality.

On the matter of refugees and stateless persons, some points are also worth clarifying. Certainly, statelessness of persons poses a serious problem to the world. It creates a thorny impact on the lives of individuals, as possession of nationality is a prerequisite for participation in society and effective protection of human rights. Statelessness is caused by a number of factors which include (1) Conflicting laws; (2) Transfer of territory; (3) Marriage laws; and (4) Laws and practices related to children, among others. The current trend in dealing with stateless persons is exemplified in the Article 32 of the 1954 Convention Relating to the Status of Stateless Persons  (as cited in Salonga, 1967) which calls upon States “as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.” The status of statelessness cannot be a problem anymore once the person acquires an effective nationality. This may be achieved by two means: (1) Through local integration where States are required to assimilate the integration of the stateless persons residing in their community; and (2) through resettlement, where naturalization can be done in another country if local naturalization were deemed impossible. (Frontiers Ruwad Association, 2009). In both cases, acquiring nationality proves to be an ultimate, if not holistic, solution to statelessness of persons.

The points enumerated by my co-speakers are as clear as crystal. To reiterate, here are the advantages of using the nationality theory as a system in determining one’s personal law:

(1)   Personality is easily assumed when one’s nationality is recognized into the forum.
(2)   The personality of an individual is determined only by his nationality.
(3)   The nationality theory affirms the notion in public international law that states have jurisdiction over their nationals.
(4)   Since nationality cannot be changed overnight, it would be better to apply the national theory to determine one’s personal law for reasons of stability and convenience.
(5)   There would be less prejudice to the foreign parties involved in a lawsuit since it would be their own nationality that would determine their stand on whatever case involving them.
(6)   If nationality theory is adapted, people would be more assured on whatever transaction they would engage into, thus more sense of security for them.
(7)   Applying nationality theory would grant foreign parties the distinct rights that their native country provides for them, thus arbitrary dissolution of rights would be lessened.

Professor Jovito Salonga (1967), a renowned expert in Philippine private international law, writes that the theory of personal law must be justified on practical considerations of convenience and expediency. That is to say, it must be the same everywhere regardless of countries and situations. It must also aim for uniform regulation of matters of status with respect to the basics of personal life. The nationality theory embodies the said attributes. A change of nationality can always be verified by official documents. The conception of nationality is relatively free from ambiguity as it does not differ from all states of the world. More importantly, the principle of nationality does not suffer from the danger of pretended change. That is to say, nationality cannot be easily tampered if one wants to evade from subjection of certain acts to the rules imposed by the state. Therefore, the theory of nationality is relatively certain and simple.

The system of nationality is based on the idea that an individual is deeply rooted in his nation. Unless he intentionally cuts off his national tie through naturalization in another country, an individual remains to be a subject of his or her State. To conclude, allow me to share what the French international jurist Laurent says regarding this matter: “If, then, laws of status are personal, it is because they are the product of those thousand circumstances which make up nationality. They are personal because they are national. They should consequently follow the person everywhere because he carries his nationality with him… For it is as national laws that personal laws receive their application everywhere” (as cited in Salonga, 1967, p. 130).
 
Thank you and good afternoon.

References:

Frontiers Ruwad Association (2009). Invisible Citizens: A Legal Study on Statelessness in Lebanon. Retrieved 8 March 2013 from http://www.refugeelegalaidinformation.org/sites/srlan/files/fileuploads/Invisible_Citizens_-_A_Legal_Study_on_Statelessness_in_Lebanon_Nov_2009.pdf

Salonga, Jovito (1967). Private International Law Manila: Rex Publishing Co. Inc.

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