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Published online by Cambridge University Press: 28 March 2017
The transformation of the British Empire has affected in a striking manner relationships of the former Empire’s people with respect to their nationality.
The authors acknowledge with appreciation a grant from the Duke University Commonwealth-Studies Center, which has made possible this study, it being a part of a larger project. They also express their thanks to Dr. Don C. Piper, Executive Secretary of the Center, for his valuable assistance.
1 Markwald v. Attorney-General, [1920] 1 Ch. 348; 14 A.J.I.L. 276 (1920).
2 Cmd. 7326. The common status was to apply not only to persons, but also to merchant ships. The British Commonwealth Merchant Shipping Agreement (Dec. 10, 1931) had provided in its Part I, Art. 2:
1) No ship shall be registered in any port within the British Commonwealth so as to acquire the status and recognition mentioned in paragraph (2) of this Article unless it is owned wholly by persons of the following description, namely:
(a) Persons recognized by law throughout the British Commonwealth of Nations as having the status of natural born British subjects;
(b) Persons naturalized by or in pursuance of the law of some part of the British Commonwealth;
(c) Persons made denizens by letters of denization; and
(d) Bodies corporate established under and subject to the law of some part of the British Commonwealth and having their principal place of business within the British Commonwealth.
2) Every ship so owned and duly registered within the British Common wealth shall possess a common status for all purposes and shall be entitled to the recognition usually accorded to British ships." 129 L. N. Treaty Series 177.
3 The British Nationality Act of 1948, 11 and 12 Geo. 6 (1948), c. 56; as amended by the British Nationality Act of 1958, 6 and 7 Eliz. 2 (1958), c. 10. The Act as amended will hereafter be cited as the British Nationality Act, unless otherwise stated. The operation of the principal Act in regard to protectorates, protected states, trusteeships and protected persons has been given effect by Orders in Council issued from time to time under the authority of the Act as follows: British Protectorates, Protected States and Protected Persons Order in Council No. 140 of Jan. 28, 1949, Statutory Instruments (1949), I, 522; British Protectorates, Protected States and Protected Persons (Amendment) Order in Council No. 457 of March 10, 1952, ibid. (1952),I, 437; British Protected States (Fujairah and Kalba) Order in Council No. 1417 of July 29, 1952, ibid. (1952), I, 436; British Protectorates, Protected States and Protected Persons (Amendment) Order in Council No. 1173 of Dec. 4, 1953, ibid. (1953), I, 188; British Protectorates, Protected States and Protected Persons (Amendment) Order in Council No. 259 of Feb. 19, 1958, ibid. (1958), I, 245; and the British Protectorates, Protected States and Protected Persons (Amendment No. 2) Order in Council No. 590 of April 3, 1958, ibid. (1958), I, 246. The operation of the Act for British communities not electing to join the Commonwealth, members leaving the Commonwealth, newly emerged Commonwealth countries, and certain self-governing units is effectuated by: the Burma Independence Act, 1947, 11 Geo. 6 (1947), e. 3; Ireland Act, 1949, 12 and 13 Geo. 6 (1949), c. 41; the Ghana Independence Act, 1957, 5 and 6 Eliz. 2 (1957), c. 6; the Federation of Malaya Independence Act, 1957, 5 and 6 Eliz. 2 (1957), c. 60; the Nigeria Independence Act, 1960, 8 and 9 Eliz. 2 (1960), c. 55; the Sierra Leone Independence Act, 1961, 9 and 10 Eliz. 2 (1961), c. 16; the Republic of South Africa (Temporary Provisions) Act, 1961, 9 and 10 Eliz. 2 (1961), c. 23; and the British Nationality Act, 1958 (Commencement) Order, 1958, Order in Council No. 327 of Feb. 27, 1958, which caused Sec. 1 of the British Nationality Act of 1958 to come into operation on March 1, 1958, Statutory Instruments (1958), I, 236. The nationality of adopted children is treated in the Adoption Act, 1950, 14 Geo. 6 (1950), c. 26, as amended by the Adoption Act, 1960, 8 and 9 Eliz. 2 (1960), c. 59.
4 Citizenship Act No. 57 of 1955, Sec. 11, to be found in: India, Ministry of Law, Acts of Parliament (1955), p. 307, as amended by the Citizenship (Amendment) Act No. 65 of 1957, ibid. (1957), p. 492, hereafter cited as the Indian Citizenship Act. Citizenship is also covered by the Constitution of India of Nov. 26, 1949, Pt. II, Arts. 1-11, hereafter cited as the Constitution of India. The fact that the Indian Act does not confer the status of a Commonwealth citizen or British subject on the citizens of India would appear to have little effect within the Commonwealth as long as the laws of the other Commonwealth countries recognize a citizen of India as a British subject. For instance, in the case of Bava Bhaga v. Parbhu, tried by the Supreme Court of New Zealand in 1954, the defendant held that he was a citizen of India and not a British subject. The court found that he was a British subject and that a writ could issue to be served in India against him. See [1954] N.Z.L.B. 1039
5 Pakistan Citizenship Act, 1951, The Central Acts and Ordinances (1951), Act II of 1951; as amended by Pakistan Citizenship (Amendment) Act, 1952, ibid. (1952), Act V of 1952, hereafter cited as Pakistan Citizenship Act.
6 South African Citizenship Act of 1949, Sec. 1. Statutes of the Union of South Africa (1949), Act No. 44 of 1949, p. 414, hereafter cited as the South African Citizenship Act. Although South Africa has become a Republic and is out of the Commonwealth, laws existing as of May 31, 1961, were to continue in force for a period of one year from that date unless provision should be made to the contrary by the proper authorities. See Republic of South Africa (Temporary Provisions) Act, 1961, as cited in note 3 above.
7 For the purpose of the present study, South African legislation is less pertinent than is that of the United Kingdom. South Africa's failure to encourage dual citizenship has been attested by her non-recognition of nationality jure soli in the case of a person whose father was a prohibited immigrant, and by her rule that a South African of full age acquiring the citizenship of the United Kingdom by registration would forfeit his South African citizenship. See Clive Parry, "Plural Nationality and Citizenship with Particular Reference to the Commonwealth," 30 Brit. Yr. Bk. of Int. Law 279 (1953).
The British Nationality Act of 1948 having denned "British subject" as anyone who is a citizen of named countries (without any specific mention of the Common wealth), the rule continued to apply to South African citizens even after their state's leaving the Commonwealth. The precedent of Eire and certain wording in the United Kingdom-Burma Treaty of Oct. 17, 1947 (70 U. N. Treaty Series 183) did not, however, control British policy. The Parliament at Westminster, in the South Africa Bill of 1962 (House of Commons Bill 63/1961-'62), amended earlier legislation on nationality by providing that, at the end of a "stand-still" period (May 31, 1962), South Africans who were British subjects by reason of their South African citizenship would become aliens; until 1965, however, certain categories of South Africans can become United Kingdom citizens by registering instead of going through the naturalization process, and South African citizens employed in Great Britain in positions not open to aliens may, until the end of 1965, choose between applying for United Kingdom citizenship and abandoning such positions. See Clive Parry, "The Status of Citizens after May 3 1 , " The Times (London), March 21, 1961, p. 13.
In South Africa, the Commonwealth Relations (Temporary Provision) Act, 1961, provided that South African laws containing references to the Commonwealth or to a particular Commonwealth country should not be affected by the fact that the Republic was not a member of the Commonwealth. If, however, a Commonwealth country should exclude the Republic from the benefits enjoyed by other Commonwealth countries, the Republic might do likewise. Statutes of the Union of South Africa, 1961, p. 486
8 Ceylon Citizenship Act of 1948, Ceylon, Parliament of Ceylon, The Acts of Ceylon (1948), Act No. 18 of 1948, as amended by: Citizenship Amendment Act of 1950, ibid. (1950), Act No. 40 of 1950, and Citizenship Amendment Act of 1955, ibid. (1955), Act No. 13 of 1955, hereafter cited as the Ceylon Citizenship Act.
9 Australia and New Zealand also gave statutory recognition of such a status, and although not using the identical term, South Africa did so.
10 See note 7 above concerning some more recent legislation in South Africa.
11 See Jones, J. Mervyn , British Nationality Law 186 (Oxford, 1956, rev. ed.), and the same author's discussion of Who Are British Protected Persons? 22 Brit. Yr. Bk. of Int. Law 122-129 (1945) ;Google Scholar Smith, S. A. de , The Vocabulary of Common wealth Relations, Commonwealth Papers, No. 3, p. 21 (London, 1954)Google Scholar. See. 32(1) of the British Nationality Act defines a British protected person as a "person who is a member of a class of persons declared by Order in Council made in relation to any protectorate, protected state, mandated territory or trust territory to be for the purposes of this Act British protected persons by virtue of their connexion with that protectorate, state or territory."
12 The Orders in Council not only stipulate the persons who will be entitled to status in different geographic entities, but lay down the rules for the acquisition and transmission of such status in much the same manner as the British Nationality Act itself does for citizens of the United Kingdom. For such Orders in Council passed to date, see note 3 above.
13 British Nationality and New Zealand Citizenship Act, Act No. 15 of 1948, New Zealand Statutes (1948), I, 145, as amended by the British Nationality and New Zealand Citizenship (Amendment) Act, Act No. 38 of 1959, ibid. (1959), I, 344, hereafter cited as the New Zealand Citizenship Act. For citizenship of adopted children in New Zealand, see See. 16(2) (e) of the Act to consolidate and amend certain enactments of the General Assembly relating to the adoption of children, Act No. 93 of 1955, ibid. (1955), I I , 1128.
14 Nationality and Citizenship Act of 1948, Act No. 83 of 1948, Commonwealth Acts (1948), XLVI, 415, as amended by: Nationality and Citizenship (Amendment) Act of 1950, Act No. 58 of 1950, ibid. (1950), XLVIII, 180; Nationality and Citizenship (Amendment) Act of 1952, Act No. 70 of 1952, ibid. (1952), L, 258; Nationality and Citizenship Act of 1953, Act No. 85 of 1953, ibid. (1953), 305; Nationality and Citizenship Act of 1955, Act No. 1 of 1955, ibid. (1955), 321; Nationality and Citizenship Act of 1958, Act No. 63 of 1958, ibid. (1958), 608; Nationality and Citizenship (Amendment) Act of 1959, Act No. 79 of 1959, ibid. (1959), 356. The Nationality and Citizenship Act as amended will hereafter be cited as the Australian Citizenship Act. For special provisions regarding Burma, see Nationality and Citizenship (Burmese) Act, Act No. 12 of 1950, ibid. (1950), XLVIII, 21.
15 Cmd. 7326.
16 See Ghana Nationality and Citizenship Act of 1957, Sec. 11, Ordinances and Acts of Ghana (1957), Act No. 1 of 1957, p. 183, which permits British protected persons to be registered as citizens in the same manner as Commonwealth citizens. The Ghana Act will be cited hereafter as the Ghana Citizenship Act.
17 For the purpose of the law concerning international responsibility they are assimilated to British subjects. See Jones, J. Mervyn , op. cit. 185, 195;Google Scholar Parry, Clive , Nationality and Citizenship Laws of the Commonwealth and of the Eepublic of Ireland 116 (London, 1957);Google Scholar 1 Oppenheim, International Law 646, note 3 (8th ed., Lauterpacht, 1955); for an excellent treatment of the status of protected persons in general, see Parry, op. cit., Ch. 7.
18 D. O. McGovney's essay on non-citizen nationals, in Max Badin and A. M. Kidd (eds.), Legal Essays 323-374 (1935).
19 Wilson, Bobert B. , Gradations of Citizenship and International Beclamations, Google Scholar 33 A.J.I.L. 146-148 (1939).
20 On the controversial nature of the question, see Wilson, Robert R. , United States Commercial Treaties and International Law, Ch. X (1960)Google Scholar.
21 See Mansergh, Nicholas and others, Commonwealth Perspectives 70-71 (1958)Google Scholar, for illustrative cases.
22 The court admitted that the legislation was contrary to international law, but held that legislation could accomplish the purpose regardless of international law and that the Commonwealth enactment would have to be applied. 70 C.L.R. 60 (1945). The National Security Act 1939-1943 and the National Security (Aliens Service) Regulations covering the drafting of aliens were repealed in 1946. See Commonwealth Acts, Act No. 15 of 1946, XLIV, 42, and Commonwealth Statutory Rules (1945-1946), No. 184, p. 754.
23 Cf.Parry, Clive , “International Law and the Conscription of Non-Nationals,” 31 Brit. Tr. Bk. of Int. Law 437-452 (1954).Google Scholar
24 Stapleton v. The Queen, 86 C.L.E. 358, 377 (1952).
25 British subjects have been within the jurisdiction of the courts in Great Britain for a number of acts or omissions committed abroad, as in the case of bigamy, murder or manslaughter, under the Offences Against the Person Act, 1861, Sees. 9, 57 (24 and 25 Vict., c. 100); treason under An Acte conceminge the Triall of Treasons comytted out of the King Majesties Domynions, Sec. 1 (35 Hen. 8, c. 2), and certain offenses under the Merchant Shipping Act, 1894 (57 and 58 Vict., c. 60); Explosive Substances Act, Sec. 3 (46 and 47 Vict., c. 3 ) ; and the Official Secrets Act, 1911, Sec. 10 (1 and 2 Geo. 5, c. 28). Cf. the decision in Joyce v. Director of Public Prosecutions, [1946] A.C. 347.
26 Central Bank of India, Ltd. v. Ram Narain, A.I.B. (1955) Supreme Court 36.
27 Australian Citizenship Act, Sec. 9; Ghana Citizenship Act, Sec. 10; New Zealand Citizenship Act, See. 5; Nigeria Constitution, Sec. 14(1); Sierra Leone Constitution, Sec. 8(1).
28 E. F. W. Gey van Pittius, Nationality Within the British Commonwealth of Nations 9 (1930).
29 The diversity of the law within the British Empire and the importance of the concept of domicile to such law was brought into sharp focus by the case of Johnson in re Boberts v. Attorney-General, [1903] 1 Chancery Division 821, 832-834, 835. A British subject born in Malta died in Baden, Germany. The law of Baden called for distribution of a foreigner's movable property in accordance with the law of the country of which he was a subject. Justice Farwell spoke to the question of the determination to be applied. He noted that the British Empire contained many different systems of law and that there was no one law which could be taken for this purpose as the law of nationality of propositus. The Justice queried: “ . . . what nationality at his death can a Court which ignores domicile attribute to a man born in Scotland who makes his home and fortune at the Cape and dies in England?” The court, therefore, found that foreign courts should apply the law of the country with which they were in diplomatic relation, i.e., England, and that the latter would determine the law to be applied by having regard to the individual's domicile of origin. Professor Gey van Pittius {op. cit. 57) noted the ineffectiveness of nationality as an indication of status within the Empire and drew attention to the tendency to stress the place of a person's habitual residence. The concept of domicile was found to follow the inhabitant of the Empire “like a shadow” and make it possible to keep the separate legal entities of the Empire intact by subdividing British subjects according to the part of the Empire to which they were deemed to belong.
30 On this doctrine and the decline of its importance, see Eawcett, J. E. S. , The Inter Se Doctrine of Commonwealth Eelations (1958)Google Scholar, passim.
31 An exceptional arrangement, which Canada concluded with India, Pakistan and Ceylon, allows a yearly quota of citizens from each of the Asiatic states to enter as immigrants. See 248 U. N. Treaty Series 90, 96, 102 (1956), and 316 ibid. 376 (1958).
32 Pub. Gen. Acts, 10 and 11 Eliz. I I , 1962.
33 The Times (London), Nov. 17, 1961, p. 19.
34 Ibid., Nov. 19, 1961, p. 11. Cf. Alastair Buchan's suggestion that the Act "drives a long nail into the coffin of the Old Commonwealth." The Observer (London), July 15, 1962, p. 18.
35 For disabilities of British subjects within the Empire and Commonwealth, see Norman Mackenzie (ed.), The Legal Status of Aliens in Pacific Countries (London, 1937), Ch. I on Canada, Chs. II , III , and IX on Australia, Canada and New Zealand, respectively; C. F. Fraser, Control of Aliens in the British Commonwealth of Nations (London, 1940), passim; H. F. Angus, “The Legal Status in British Columbia of Residents of Oriental Race and Their Descendants,” 9 Canadian Bar Review 1-12 (1931); Jean Mercier, “Immigration and Provincial Rights,” 22 Hid. 856-869 (1944); Paras Diwan, ' ' Treatment of Indians and the Question of Apartheid in South Africa,' 16 Supreme Court Journal (India) 135-180 (1953) ; Henry J. May, The South African Constitution, Chs. X and XXIII (3rd ed., Cape Town Johannesburg, 1955); G. W. F. Gould and C. P. Joubert, The British Commonwealth, Vol. 5: The Union of South Africa, Ch. XII (London, 1955).
36 Cunningham and Attorney-General for British Columbia v. Tommey Homma and Attorney-General for the Dominion of Canada, [1903] A.C. 151, 152.
37 Harry Narine-Singh and Mearl Indra Narine-Singh v. Attorney General of Canada, [1955] Can. Sup. Ct. 395.
38 Co-operative Committee on Japanese Canadians v. Attorney-General for Canada, [1947] A.C. 87.
39 13 British Columbia Reports 370 (1908). As a result of this finding the Hindu Friends Society of Victoria sent a petition to the Imperial Conference of 1911 which read in part: “ The present Dominion Immigration Laws are humiliating to the people of India, when the aliens, such as the Japanese and Chinese, by their treaty rights, can come to Canada whereas our fellow British subjects are not allowed to enjoy the birth-right of travelling from one part of the British Empire to another.” Cd. 5746-1.
40 Cf.Henry, J. Google Scholar. May, op. cit. passim.
41 Group Areas Act, Act No. 41 of 1950, as amended by Act No. 65 of 1952; Act No. 6 of 1955; Act No. 68 of 1955; Act No. 29 of 1956 and Act No. 57 of 1957. The amended acts were consolidated by Act No. 77 of 1957. Statutes of the Union of South Africa for the years cited.
42 Gold Coast, Legislative Assembly Debates (1955), No. 1, Cols. 734-736.
43 In the case of Noor Mohammed and Others v. The State, 1956, petitioner, who was about to be deported from India, claimed that he was an Indian citizen. His counsel maintained that, even if the petitioner were a Pakistani, he would not be subject to deportation, since the Declaration of Foreign States Order declared that no Commonwealth country was a foreign state. The court, however, held that the 1950 order did not mean that such individuals were Indians for the purposes of the Constitution. Counsel for the petitioner further maintained that, since his client was a Commonwealth citizen, he would not be subject to deportation in view of the provisions of Art. 19 of the Constitution. The court rejected counsel's contention and drew attention to Sec. 12 of the Indian Citizenship Act. It was found that since the counsel could not point out any order of the Central Government conferring such rights in accordance with Sec. 12 of the Act, the petitioner in fact had no such rights. The court concluded:“ All that is guaranteed to non-citizens is protection of life and liberty in accordance with the law of the land.” A.I.E. (1956) M.B. 211-214. This decision was upheld in Naziranbai v. The State, A.I.E. (1957) M.B. 1.
44 The Times (London), Jan . 29, 1957, p. 7, and Feb. 1, 1957, p. 7.
45 Mansab Ali v. N.-W. F . P. Government, [1954] 2 P.L.D. Peshawar 84.
46 9 U. N. Treaty Series 132.
47 Great Britain, 146 British and Foreign State Papers 552 (1946).
48 157 U. N. Treaty Series 104.
49 99 ibid. 150.
50 87 ibid. 3.
51 Cmd. 7600.
52 273 IT. N. Treaty Series 121.
53 249 ibid. 20.
54 80 ibid. 28.
55 161 ibid. 186.
56 Although Canada had passed an Act in 1921 defining Canadian nationals (11 and 12 Geo. 5, c. 4) and the Union of South Africa had done so in 1927 (Statutes of the Union of South Africa (1927), Act No. 40 of 1927), Australia had no such act. As late as 1936 the Australian High Court was forced to admit that the term “Australian National” could not be defined for treaty purposes so as to separate Australian nationals from the general category of British subjects. See The King v. Burgess, Ex parte Henry, 55 C.L.E. 608, 647-651 (1936).
57 On the development, see C. E. Carrington, “ Disputes between Members of the Commonwealth,” a memorandum distributed for the Eoyal Institute of International Affairs (1960).
58 See, for examples, Australia-Canada agreement of June 11, 1946 (10 U. N. Treaty Series 47), Art. 9; Pakistan-India agreement of June 23, 1948 (28 ibid. 143), Art. 11.
59 The directness of relationship between the individual claimant and the state espousing his claim might, as in the Nottebohm case ([1955] I. C. J. Eep. 4-27), be a matter for tribunals to determine.
60 Cf.Parry, Clive , op. cit. 114-123.Google Scholar
61 Reported remarks of the Earl of Home in connection with discussion of Great Britain and the Common Market, New York Times, Aug. 2, 1962, p. 4.
