JUXTAPOSITION OF INTERNATIONAL LAW WITH ...jcil.lsyndicate.com/wp-content/uploads/2020/05/...* 5th...

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29 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 6 ISSUE 4

JUXTAPOSITION OF INTERNATIONAL LAW WITH NATIONAL LAW

WITH RESPECT TO SUBJECTS OF LAW

Authored by: Suraj Kundu*

* 5th year BBA-LLB Student, Amity University

______________________________________________________________________________

INTRODUCTION

Different perspectives about the existence and relationship of nationality with rights and duties

contribute to differing views on nationality concept and its consequences for municipal law.

Although analysts accept that nationality for municipal and international law is an essential basis,

they can't agree on whether it is a state or a relationship. Both ideas actually seem to apply.1 Santulli

points out that a relationship with the state is not a nationality aspect but a nationality condition.

In fact, the real link is a condition of nationality but not a component of nationality. Municipal law

chooses “facts” that it uses as elements of attachment (“Anknupfung”) to operate attribution of

nationality. However, as municipal law uses them as actual conditions for the attribution of

nationality, such “facts” are logical to be distinguished from nationality itself. If we retain them as

part of the definition of nationality it is because they are necessary for its attribution and not because

they are a constitutive element thereof.2

Weis says that all experts agree on the general rule:' nationality is specified by municipal law as a

term of municipal law. Every state can thus have its own nationality concept and determine its

consequences. Weis then suggests that nationality should be commonly defined at the municipal

level as a “limited relations holding of rights and obligations between individuals and the State.”

Nevertheless, here Randelzbofer does not accept that citizenship maybe, but not their origin, a

prerequisite for those rights and duties. He points out that municipal laws relating to citizenship are

limited to the attribution of nationality to individuals and have no repercussions. Therefore, Weis

1 Albrecht Randelzbofer (1985) “Nationality”, in Encyclopedia of Public International Law, ed. Rudolf Bernhardt and

Max Planck Institute for Comparative Public Law and International Law, vol.8: 416-424, 417. 2 Carlo Santulli, Irregularites internes et efficacite internationale de la nationalite, Paris, Universite Pantheon-Assas

Paris-2, 1995, p. 3.

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considers the citizenship relationship in municipal law as involving the mutual rights and

substantive duties according to the State, while Randelzbofer regards this as simply a categorization

that can lead to such rights and obligations.

The latter view seems to underline concerns that nationality and citizenship are confidential, which

is important to ensure that the impact of the state system on multiple nationalities is weighed down.

Interestingly, the ninth edition of oppenheim starts with the nationality section saying: “An

individual's nationhood is his value as the subject of some government,” while the seventh one

reads: “A person's nationality is his quality as an object of some country and, therefore, a citizen”.3

In Randelzbofer's opinion, the effects of nationality on the municipal plane tend to be limited to

determining who part of the national class is. Yet Weis is correct to point out that it is not universal,

and in many countries, that it requires rights and responsibilities directly, particularly in cases where

nationality and citizenship are indiscriminate as legal categories and where local authorities provide

for the right to claim diplomatic immunity. The same happens when nationality itself has direct

implications for city law, not international law. As far as international relations are concerned,

diplomatic immunity and admission to territories are both usually regarded as the global

consequences of nationality.

In the definition of nationality under international law, Weis stated:' nationality is a technical term

designating an assignment, to the particular State, of nationality as citizens of that State, of rights

and duties with respect to other States to a State of nationality.4 It should be emphasized that it is

the government, not the city that holds these rights and duties, which extends to other countries.

The nationality of the person is generally equal in accordance with local and international

legislation. Nevertheless, international law may give effect to persons who may not have such a

right under state municipal law to the nationality of a particular state.

3 L.oppenheim, in International law. A treatise, ed. Hersch Lauterpacht London, Longmans, Green & Co., 1948,

pp.585-86 4 Weis, Nationality and statelessness in international law, London, Stevens and sons, 1956, p. 59.

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NATIONALITY IN INTERNATIONAL LAW

The initial comments made by the Harvard Law School Committee on the draft Convention on

nationality in 1929:

“Nationality has no true, unchanging value. In addition, with the changing character

of states, the meaning and import have shifted. In the Feudal Period, however,

citizenship was mostly distinct from or equivalent to nationality before it was defined

in certain territorial limits in the States, and it now varies from what it was in the

Feudal Era. It may gain a new meaning in the future as a result of further changes

in the nature of human society and international development. Nonetheless,

citizenship also means membership of any kind in a State or nation's society.”5

The principle that international law does not change the nature of nationality is a significant starting

point for any investigation into the effects of current state practice on several nationalities.

International law seems to determine the contours of citizenship in international law through hard

and fast rules.

RECOGNITION OF NATIONALITY

It has been shown that countries can assign their nationality to whomever they choose, with no or

very few exceptions, in various ways. It is the recognized general rule of law, that nationality

determinations are essentially a representation of State sovereignty within the framework of

international law and relations for international law purposes within the jurisdiction reserved for

each state's municipal law. If unregulated freedom granted to States could obviously lead to

anomalous and dangerous outcomes, States must start abusing this energy. Therefore, international

law states that it is up to international law whether the granting or the withdrawal of citizenship

must be accepted by other Member States when the implications of such granting are viewed

globally. These are issues with nationality identification. It is worth noting that, under international

5 Manley o. Hudson and Richard W. Flournoy Jr., “Nationality – Responsibility of states – Territorial waters, drafts

of conventions prepared in anticipation of the first conferences on the codification of international law, The Hague

193o”, The American Journal of International Law,(1929) vol. 23, April, Supplement, p. 21.

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law, the fundamental implications of nationality are the State's right to diplomatic security of its

citizens and the duty to permit their nationals entry and residency.

The misuse of the power of the state is a question that could be considered controversial in this

regard. For example, Spain's offer to explicitly grant Spanish citizenship to Spanish grandchildren,

if they stay for one year, has resulted in reports of over a million people coming to Spain alone,

4,00,000 from Argentina.6 Spain has been also expanded to its survivors in 1996 (approximately 9o

remaining men), who moved from the United States to combat Francisco Franco's forces in the

193os, with regard to the claims of their nationality.7 While Spain may find the nationals of these

groups validly, how much did Argentina and the US consume to do this? Article 1 of the 1930

Hague Convention defines the general rule concerning the attribution and acknowledgment of

nationality on the international level:

“In accordance with its own constitution, each state shall decide who it is. This law

is accepted by other States as it is consistent with international conventions,

international couture and the standards of nationality generally recognized.8”

International law thus tends to treat citizenship in a different light than local legislation. It may or

may not accept nationality, and as already stated, it may consider nationality if a state does not

attribute it in its municipal legislation, but it creates semantic confusion by marking it as such.

A related problem is when states agree to recognize nationals of themselves as foreigners when

they are dual or multiple citizens in certain situations. For example, Australia signed a Consular

Treaty with Hungary accompanied by a Note exchange that states, on Australian passports with

visas for temporary visits, that Hungaria will regard Hungary as Australian Duals and vice versa.9

GENERAL BASES FOR NON-RECOGNITION OF NATIONALITY UNDER

INTERNATIONAL LAW

6 David Sharrock, “Spanish welcome migrants” 7 An earlier foreign war. They fought Franco, in Abe’s name”, The Economist, 3 May 2oo3, p. 33. 8 See Randelzbofer 9 See Ryszard W. Piotrowicz

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While a nationality may become legitimate municipally (and the State claiming a nationality as the

ordinary diplomatic security right) international law provides, if the specific nationality has not

been allocated in accordance with international law, that the States shall be not obliged to recognize

such nationality. Definitions involve situations where the relation between the individual and the

state is not considered sufficient to support a state claim to protect a person in regard to another

position, in addition to the potential definitions that have been addressed already. Thus:

1) The naturalization of nationals of other States not related to either their territories or their

nationals is not needed.

2) No recognition is expected in all people with religious or political beliefs, speaking a

particular language or being of a particular race.

3) The acquisition of property for the grant of nationality is questionable.

4) Mandated and trust territories citizens are not deemed to be administrating State nationals.

5) Occupied territorial residents may not be regarded as occupying State citizens.

6) The ILC cites automatic citizenship attribution after marriage.10

Spain agreed to grant its citizenship only after a time of residency to descendants of the Spanish,

thereby reinforcing a claim to have validly granted the Spaniard's nationality, in the example above.

CONSIDERATIONS IN RELATION TO MULTIPLE NATIONALS

While multiple nationalities do not violate international law, the trend led to specific rules relating

to multiple nationals' diplomatic security. Randelzbofer says they have received considerable

support in the international courts, while not claiming they were traditional.11

CONSEQUENCES OF NATIONALITY

When citizenship is linked under international and local rules, nationality has implications. Under

municipal law, these laws are applicable to natives but not to foreigners (property, rights, rights,

10 Report of the International Law Commission to the General Assembly 11 See Randelzbofer

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rights, and obligations). Weis states that, in order to distinguish international law from the many

rights and responsibilities of nationality found in municipality law, elements ' supposing the

coexistence of States conferencing rights or placed duties on the State in relation to other subjects

of I' must be exonerated from the relationship between the State and its nationals.12

Internationally, Shearer13 defines ‘universal importance’ of nationality as: (1) obligation to exercise

diplomatic defense; (2) national responsibility; (3) duty of admission; (4) allegiance; (5) right to

withhold extradition; (6) enemy status determination during the war; and (7) authority exercise. By

defining these elements as “internationally relevant,” he says they affect the general international

context of nationality as well as international law. To our end, it is important to examine certain

areas whether in foreign or municipal legislation they form implications or functions of nationality,

or if they are connected to a broader understanding or value of nationality in international relations.

THE STATE’S RIGHT OF DIPLOMATIC, CONSULAR OR INTERNATIONAL

PROTECTION, AND INTERNATIONAL CLAIMS

Perhaps the principal effect (or function) of foreign nationality is that, when it is damaged by other

States, a state that protect or act on behalf of its citizens. This ensures that diplomatic or consular

officials support and defend citizens abroad and raise compensation claims if another country has

handled a national in violation of international law. The right is a foreign practice, a State of

nationality, not an individual. While the State may grant its citizens the right to diplomatic security

in their municipal laws, its practice in international law is solely at the State's discretion. It is

absolute and time-limited.14Occasionally states occasionally seem to settle for international

jurisdiction over their citizens.

Diplomatic protection is an intrinsic feature in the personal competence of States on their nationals,

which must be recognized in the performance of such security by others which can only call into

question this particular connection, or the presence of a circumstance in which the protective State

12 See Weis 13 Gabriel Starke, Starke’s international law 14 See Weis

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has demanded redress, i.e. a breach in this particular relationship between States and an individual

which it presupposes.15

DIPLOMATIC/CONSULAR OF MULTIPLE NATIONALS

As with the problems of nationality recognition, multi-national diplomatic security mainly involves

issues of nationality opposition to other countries. Nonetheless, an increasingly important field of

practical concern for states seems to be when nationals who are also second-country nationals are

regarded by third countries as second-country nationals, which results in harm or damage.16

Turning to the opposition, the question also occurs with regard to foreign claims, which includes

whether a specific nationality should, in the sense of a particular claim, usually under the treaty be

assigned to a specific individual vis-à-vis a particular country. The question of security can be

broken down into circumstances where the person to be covered has the nationality17 of the state

against which the protection is sought and situations where a third State and a court are faced with

persons who have more than one nationality.18

The Principle of Equality defined under Article 4 of the 193o Hague Convention on Certain

Questions concerning Conflict of Nationality Laws states that “a State may not give one of its

national’s diplomatic immunity against a State which is a national of that State.” In the Hague

Convention of 193o, multiple nationalities are to be considered as one nationality, according to the

concept of effective or prevailing nationality. “Nor the nationality of the country where he or she

habitually lives, or the nationality of the country to which he or she appears to be closely linked

under the circumstances.”

In the Nottebohm case, the International Court of Justice applied the concept of active citizenship

in a single nationality. Australian courts have cited a rule in defining the responsibilities of East

15 See Weis 16 See DeNeen L. Brown and Dana Priest 17 See Blaser 18 See Salem Case

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Timorese asylum seekers from Indonesia under international refugee law who were Portuguese

citizens and coupled it with a concept of “effective protection”.

Diplomatic security was considered the target of codification at its 48th session (1996), where Mr.

Mohamed Bennouna was named Special Rapporteur.19 In 1999 the role was assumed by Mr.

Christopher John R. Dugard.20 The Special Rapporteur claimed that the reason for his suggested

reports was not to deny diplomatic security as less relevant than in the past. So long as the State is

the leading actor in international relations, the spousal of States ' allegations of breaches of national

law remains the most successful means of protecting human rights.21

In 2004, 19 draft articles on diplomatic security were adopted by the ILC, articles 6 and 7 being

directly relevant to various nationalities.22

Article 6: Multiple nationality and claim against a third State

1 Each State whose national is a dual or multiple national can exercise diplomacy against a State

of which that person is not national in relation to that nation.

2 In the case of double or multiple nationalities, two or more national States may jointly exercise

diplomatic security.

Article 7: Multiple nationalities and claim against a state of nationality

A State of nationality that, in respect of an individual against which the individual also is a citizen,

not exercise diplomatic immunity unless the former State's nationality prevails at the time of the

injury and on the date of the official filing of the claim.

Judge Guggenheim addressed in his dissenting opinion in Nottebohm the question of the division

of diplomacy into two parts, on the one side consular and diplomatic security and on the other, state

spousal privileges. Is there space for reflection on current state policy against multiple nationalities?

19 International Law Commission, Session 52 20 International Law Commission, Session 54 21 International Law Commission, Session 52 22 International Law Commission, Session 56

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STATE RESPONSIBILITY TO THE OTHER STATES FOR ACTS OF ITS NATIONALS

Shearer notes that “the country of which an individual is a national can become a liability to another

nation if he has failed to prevent or punish the individual for certain unjust acts committed by

him.”23

Can a State claim plausibly, on the grounds that the other State of Nationality should be held

accountable for the actions of one or all of its citizens, who are a multi-national?

This cannot be clarified by the interpretation of government responsibility and the principle of

immutability. States are liable for "a violation of a certain duty under international law that is based

on a State and not a violation of a strictly contractual provision" to other States. Nevertheless, the

globally criminal act must be attributed to, not just the government itself. For this reason, the

commission of acts of international delinquency by several nationals does not create a dispute as to

the attribution, by one Member State or another, of such conduct, as to whether the act to be elevated

to an international level must be associated with a particular State. This means failure to perform a

restitution duty on those culprits who have affected the national states concerned. In this context

the various nationalities of individuals, therefore, call for no problems.

The State Responsibility Articles of the ILC apply in particular to the ILC's above-named work on

diplomatic security. Article 44(a) of the former states that any statement of state liability must be

brought under "any relevant law relating to the nationality of the applicant:

“No specifics of the nationality of the law on claims or of the exemptions are intended

in paragraph (a). or, if it makes it clear that the principle of citizenship of claims not

only involves issues of competence or admissibility of claims before legal bodies but

also constitutes a general requirement in cases where it applies.24”

23 See Gabriel Starke 24 See Crawford

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JURISDICTION

Authority is an element of sovereignty that refers to political, constitutional and administrative

authority. The point of departure in this part of the law is that authority is federal, at least in a

presumption.25 This conclusion is evident if enforcement by states is envisaged. No compliance of

legal regulations or responsibilities is possible without the territorial intervention of the individual

or res concerned. Nevertheless, it is clear that enforcement capacity or strength is not competence.

Mere physical appearance is not enough: the State must be able to show that, on accepted grounds,

it exercises its power of compliance. Shearer defines "the territorial principle, the principle of

citizenship, the principle of security, the principle of universality and passive individuality.”

Nationality is, in contrast to a territorial one, one of the main basis for States exercising jurisdiction

over persons, which may be represented to be very large. As basic, but in so much the

implementation of this law in some cases could not be enforced and its strict application in other

cases would be subject to considerable difficulty, some exceptions were added, based on the

alternative principle that a State is competent over its own subject matter wherever it may be.26

The starting point for legal considerations is State sovereignty. The principle of State sovereignty

acknowledges that a state has exclusive jurisdiction, and that other individual are present within its

own boundaries and that cases which are entirely within that state or between a state and its own

people are not subject to international law. Exemptions are not subject to international law:

International law of state accountability with respect to harm to aliens; United Nations Security

Council's powers to intervene in the event of breaches or threats to international peace and safety

(recent practice has also tended to include gross violations of human rights within national borders

as a global threat to peace and security).27

“International law recognizes that each state can exercise jurisdiction over crimes against the

security and dignity of that State, or its vital economic interests,” according to the defense (or

security) rule of jurisdiction.28 The contour and connection of that jurisdiction with the underlying

25 See Brownlie 26 See Lawrence 27 See Shearer 28 See Gabriel Stark

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responsibilities are essential to the comprehension of the national and alien duties owed to States.

Yet, as each State has to decide what is included, it would be difficult to circumscribe the law. The

classification of actions that threaten the security of the state or critical economic interests can be

defined so loosely that the definition is almost arbitrary. The authority is, in general, “over aliens

for abroad activities.”29 Thus the requirements applicable to nations often tend to be of significance

to international law as aliens can be held liable for these actions. Were people still higher in terms

of loyalty obligations to the state? Higher standards are available?

Under the universal jurisdiction rule, such crimes are so heinous that any State can prosecute them,

irrespective of territory or citizenship such as piracy, war crimes, and genocide.30 Treaties such as

the Geneva Conventions of 1949 and their Additional Protocols of 1977 provide for this, but it

would seem entirely different whether the States decide to enforce this in their municipal law. Such

attempts have caused a great deal of confusion.31

THE RIGHT TO REFUSE EXTRADITION AND ISSUES OF JUDICIAL CO-

OPERATION

Extradition

“A State shall be entitled to refuse to extradite its own citizens to another State demanding

surrender in the absence of a particular Treaty binding upon it to do so.”32 Shearer argues that the

most important clauses of the Treaty also preclude such extradition by providing for that “no duty

to return their own citizens” by the states concerned. He records the origins of ancient times.

It was said above that this is a corollary to the active nationality rule that reflects what seems to be

an international law preference that the state of nationality must prosecute its own nationals or get

a “first bite at least.”

29 See Brownlie 30 See Shearer 31 See Stefaan Smis and Kim Van der Borght 32 See Gabriel Starke

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Shearer grounds for manipulating state policy by the rules of municipal law. The Anglo-American

policy of progressive agreement to extradite citizens was based exclusively on territoriality under

the jurisdiction of common law in the field of criminal law for many years. The failure of a nation

would thus amount to the penalty of immunity.33

Nonetheless, as illustrated by the maxim aut punier aut dedere, criminals must be disciplined or

issued in accordance with applicable treaties.34 According to the above-mentioned state liability

laws, a State can be held responsible for crimes against foreign nationals or states should it fail to

prosecute or discipline the national for crimes against him.

In response to the issue of whether several nationalities can cause an alleged criminal to escape to

another state by escaping from the competence of the one state, the answer must be yes, and that

the state's municipal law and policy could prevent the person concerned from being extradited.

While international law may make the second state liable for refusing to extradite or prosecute the

man, this is far from sure. Brownlie reports, however, that “in general states refuse to extradite

people, although in some cases it is clearly abusing of power without taking any responsibility for

trying the defendant.”35

It would seem that a refusal to extradite a national charged with a serious violation of another state

of nationality, combined with a reluctance or failure to prosecute such an offense, could, depending

on the particular circumstances, lead to an abuse of power. The implication that active citizenship

is that of the first State will likely be more egregious. In any event, such a policy would not lead to

friendly relations between States.

Oeter says that “dominant or active nationality issues have never been posed globally, it seems, in

extradition cases.” Instead, it argues that the issue is in reality connected to a strategy not to extradite

its citizens instead of to argue against multiple nationalities, in fact, in some States (most of them

in the European context).36 He states that “the underlying question is indeed the same in regard to

mono-nationals living abroad and he suggests abolishing the ban on the extradition of nationals.”

33 See Shearer 34 See Gabriel Stark 35 Brownlie, Principles of public international law, oxford University Press, 1966, pp. 319-2o. 36 See Stefan oeter

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As regards extradition requests based on the principle of effective citizenship and the potential

competence of different States of nationality for a single person, oeter argues that “the rules

regulating an executive's decision to grant extradition are sufficiently versatile to deal with the

problems arising from them.” He claimed that such conflicting requests were common, for instance,

when one state applied for territoriality extradition and another for nationality extradition.

Concurring extradition requests based on passive citizenship, as with the implementation of the

active nationality rule, are subject to forms in which states may make their own decisions and are

left with considerable leeway. With regard to the above-mentioned Pinochet scenario, oeters argued

that personal jurisdiction based on passive nationality could override territoriality and active

nationality in certain egregious cases. Although in these situations the draft of the ILC's articles on

diplomatic security as mentioned above omitted diplomatic protection, the practice of competence

for harm to a nation which would otherwise be arguably not discussed falls within a different range

of legal norms.

Allegiance/ Loyalty

The question, which was raised in the debate on the jurisdiction, whether a nation was held to some

degree of State loyalty or duty under international law. In this context it must be transparent and

established concepts and duties of allegiance and loyalty, within particular because they are often

misunderstood. Although allegiance and loyalty for the purposes of international law are separate

things, they are discussed here together because allegiance means or implies loyalty in a given

context, and in other circumstances means or implies nationality. The presumption that nations will

be obedient in political and psychological situations promotes the integration of observers and

lawmakers. Nevertheless, this combination is imprecise and potentially inappropriate for

international law purposes.

Ideas of allegiance can be seen on two interconnecting planes in an international context. We focus

on the relationship between the person and his or her own country, but they are responsible for

defending it against other states. The notion, therefore, tends to work both internally and socially

and externally. This has important consequences and meanings for many nationalities.

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While nationals’ duty to allegiance to their states definitely seems universal, it can be argued as

“black letter law,” as opposed to international law, is a principle and rule of city law. It can also be

said that the international meaning of loyalty or allegiance, like loyalty, should not be confused

with the international law rules in relation to citizenship, as regards international relations, or in

terms of countries, the wishes of their citizens with respect to other nations. Emotional questions

relating to state allegiance must also be distinguished from what the State can oblige people to do

and the conduct for which states should hold the citizens and aliens to account. It will be shown

that because even non-nationals usually bear obligations on States, as they claim loyalty obligations

if nationals of a state are involved, the relevant legal requirements are likely not clearly defined by

any means.

Allegiance must first be described and its other definitions must be distinguished as a concept of

international law. Allegiance is English law, which is derived from feudal principles and which

connotes the person's responsibility to his lord or sovereign as a correlative of his defense claim

against the superior. The notion of lifelong allegiance was at the heart of the status of a British

subject, of British nationality, until the statutory scheme of nationality and citizenship adopted by

the United Kingdom Nationality Act 1948...... as common law-word and definition, this principle

of loyalty has, of course, passed into law both in the United States and in some other States (in

general, the Commonwealth). It may obviously be part of other feudal municipal structures. The

duty owed to any state by any man, although naturally, does not have much justification by

Anglophone authors.37

Parry thus states: (1) feudal legal relation, (2) the present relationship/status of citizenship, and (3)

the obligation to the State is to be referred to as “allegiance.” His criticism of its use in this later

context is endorsed, but in some nations, for example in the United States, such use may also have

tangible legal effects. States are shown to hold people to the same duty of obedience without

marking it temporary or permanent “allegiance.”

37 See Clive Parry

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Koessler claims this: The word “allegiance” is archaic in itself. “Allegiance” in its feudal context

implied a mutual intertwined rights and duties connection. In modern states, however, the nation's

duty to the government is not contingent on the State performing its corresponding duties.38

He thus suggests that the terms ‘nationality’ and ‘permanent loyalty’ have the same meaning

nowadays. It is clear that modern authors imply duties to the State in the relationship/state of

nationality, which replaced feudal fidelity by the historical nature of feudal fidelity as mutual laws

or responsibilities. In general, despite Koessler ' s statement that the nation's duty with respect to

his state arc was unconditional, Parry's questioning of the use of tern's' allegiance' to denote duties

of the State, including loyalty in the abstract, should be examined closer. A short survey shows that

Parry and Koessler are both right.

This question is all the more important because it was obvious that there were conflicting loyalties

and responsibilities with the participating States as a primary concern to citizens who have

nationalities of more than one country. The issue poses fundamental questions in relation to several

nationalities in so far as the responsibilities of several nations are concerned when actions of

fundamental disagreement are required for them. The history of the armed conflict between states

is the most widely quoted example and the explanation for various commentators that multiple

nationalities themselves are a tragedy for the states and people concerned. Nonetheless, the concept

of loyalty or loyalty as loyalty seems to be generally understood to have a connection with the

relationship/status of nationality.39

NATIONALITY IN BILATERAL AND MULTILATERAL TREATIES AND RELATIONS

Nationality may be used to classify groups or individuals irrespective of subject matter as the class

of reference in international agreements. Throughout international agreements, nationality and,

sometimes, "citizenship" is also used in order to identify and categorize people in certain subjects

of national importance. This is because municipal law uses nationality as the basis for categorizing

persons as regards the granting of privileges and rights or the imposition of obligations. Therefore,

38 See Kossler 39 See Alfred Cyril Ewing

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it depends fundamentally on the subject and the way municipal law addresses the issue whether or

not nationality is used to delineate individuals in international agreements. Many bilateral

agreements on taxation are not focused on the nationality, as the category is wider or narrower than

the group of people that both States want to tax. Yet, U.S. tax treaties have to work to a certain

degree with U.S. citizens, as the U.S. seeks to regulate the country's worldwide income, whatever

their citizenship. In other treaties, such as Military Service Agreements, nationality is the only focus

to classify the objects of the treaty as States which use nationality and citizenship as criteria to

define the community affected.

The EU Treaty provisions, which provide equal treatment in a number of areas of law for all citizens

of EU Member States and forbid discrimination based on nationality, in particular, explain the

subject matter for which nationality has been used to discriminate among groups of individuals.40

The prohibition of discrimination on the grounds of nationality was interpreted as relating to the

basic freedoms of the EU States, namely freedom of movement and independence, violating trade

and navigation treaties from the 19th century.

If nationality is either gaining or losing value in the city or international relations as a relational

variable or categorizing tool is uncertain. In anecdotal words, however, this is the position where

globalization problems may be most important for several nationalities. When, in turn, it is more

and more easy and regular to be transferred and contacted across borders by individuals, states

might not select nationality as an important way of categorizing the freedoms, rights, and

obligations of citizens, but factors such as residence or employment. Both citizens in Australia have

the right to take part in Medicare, the national medical program, but only those residents of

Australia who are paid and, thus, permanent residents of similar locations are eligible for benefits

under the plan. In the scope of federal funds, states are clearly interested in preventing financial

benefits from multiple States for the same entity simply based on a formal status.

There is evidence to suggest that governments are increasingly aware of such issues, but also of the

challenges that people can experience in this area. For example, Aleinikoff and Klusmeyer suggest

“not being the gate holder in access to social benefits and the labor market for citizenship status.”41

40 See Brita Sundberg 41 See T. Alexander Aleinikoff and Douglas Klusmeyer

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Nonetheless, nationality is a convenient way of delineating the whole categories of people if this is

desired. As with matters relating to state policies towards inclusion and exclusion, the desirability

of nationality can vary over time and as an issue depending on the subject.

THE PRACTICE OF INTERNATIONAL TRIBUNALS

The following review of international tribunals’ rulings attempts to determine whether there are

general rules. International law can, as regards proof of nationality, be taken from them as

customary. Any existing rule of relevant international law will naturally prevail over the lake, but

the treaties and agreements in particular on the establishment of courts on this point are silent.

As far as can be seen, treaties with restrictions on the means of proof, which are evidence, are

seldom formed between contracting states for the nationality of an individual.

One such evidence of citizenship is the Treaty of 1863 between Spain and Argentina which, in

Article 7, sets out to be included in the National Register of the Legation or Consulate of that State.

Article 2 includes provisions concerning the kind of certificate which must have been regarded as

proof of citizenship between contracting states in the so-called Treaty of Rome dated April 1922,

the Treaty of Rome on nationality issues concluded by the successor states of the Austro-Hungarian

monarchy and Italy. The Treaty also contained provisions for the settlement of disputes as to the

nationality of individuals by arbitration. Austria Italy and Poland have only ratified the Treaty.

In international relations, it has been the exception rather than the rule to resolve disputes over

citizenship by arbitration. The responsibility for determining issues of nationality with effect of

erga omnes in the territories of the Contracting States of the arbitral tribunal for Upper Silesia,

under the Geneva Convention of 15 May 1922, constitutes a notable exception.

The cases examined accordingly concern complaints which have prejudiced the nationality of the

applicant or the person on whose behalf the complaint was made by the requested State, rather than

the situation in which a court is called upon to adjudicate on a dispute, as regards the nationality of

the complainant and consequently the jurisprudence of the court.

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MUNICIPAL LAW OF EVIDENCE

It has been said in the Pinson case42 that three different systems have been suggested as evidence

of citizenship in the case of the President of the French-Mexican claims commission (Professor

J.H.W. Verzihl):

a) The international court is free to appreciate the proof provided which is not restricted to

municipal rules of proof.

b) The International Court shall comply with the law of the Country of the complainant.

c) The international court must abide by the defendant State's law.

In the Expropriated Religious Properties Case, resolved in 192o, the third method is tolerant of

individual awards of the Permanent Arbitration Court. It should be remembered that the Court’s

jurisdiction, in this case, was built on an agreement reached in Lisbon on 31 July 1913 amongst the

Governments of France, Great Britain, and Spain, on the one side, and the Portuguese Government,

on the other of those eighteen claims proposed by the Government for Spain, seventeen were found

inadmissible because of the lack of proof of the Spanish citizenship of the applicant. The Tribunal

dismissed each of them in the following terms with some variations:

Nevertheless, in the first place the Portuguese Government protested that the claim did not fall

under the jurisdiction of the Tribunal, because it did not demonstrate its citizenship in any way;

Nevertheless, the Spanish Government, through the Portuguese counter case, has been aware of this

exception and has not made a statement;

In the case, under Article 1 of the agreement, the Court is responsible for making a judgment on

complaints relating to possession of the Spanish, French and British citizens, but the applicant is

not proven to belong to one of the aforementioned nationalities in the manner specified by the

Spanish Civil Code and the Portuguese Civil Code.……43

42 See U.N. Reports 43 Scott, Reports, vol. II, p.2o

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The Court did not explain why the claimant should have proved Spanish citizenship under

Portuguese law; and its claim in the Pinson case, by Schwarzenberger and Feller was questioned at

the Franco-Mexican Claims Commission.

Commissioner Nielsen said in the Russell case, determined by the Mexican-U States Special Claims

Commission in 1931: American citizenship rights are not matters that are regulated by Mexican

law, whether on the basis of constitutional or legislative laws or in relation to proof methods.44

The case of the Franco-German Mixed Arbitral Tribunal Ruinart Pere & Sons v. Franzmann can

also be mentioned. In that case, the Tribunal ruled that the plaintiff had no jurisdiction since the

defendant had shown that he was not a German national according to German law. Nevertheless,

the Belgian Court of Appeal held that according to Belgian law on the sequestration and liquidation

of German nationals (Article 2) of 17 November 1921, he is a German national.

The parties often argued before international tribunals the second system, i.e. that citizenship must

have been proved before an international tribunal in accordance with the law of proof of the State

of which the nationality must be confirmed. In an interlocutory settlement made by the Umpire,

Senor Cruchaga Tocornal, in the 1927 Klemp case, the German-Mexican Mixed Claims

Commission affirmed this decision. The concern is whether there is sufficient evidence of German

citizenship in a consular certificate issued by a German consul in Mexico. It was not the Umpire

carried. His results are based on the decision:

The nationality of a citizen is an integral part of its civic status and must be demonstrated in the

manner defined by local law in the country of which the interested party is a nationality asserted by

both sides and which is in compliance with the general doctrine of international law.45

Rules of Evidence

A. Nature at rue Evidence Required

In cases of lawsuits before international courts on proof of nationality, the first question

arose of the fact that the evidence to be supplied was definitive. The United States-Mexican

44 U. N. Reports, vol. IV, p. 8o5, at p. 8o8. 45 A.J (193o), at p. 62o

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Commission for General Claims in Hatton's case needed convincing proof. William A.

Parker was also quoted as supporting the claim, but this argument was expressly stated:

“……..the Commission opposes the argument that it must actually be treated

as conclusive evidence put forward by the plaintiff, and not dismissed by the

intimate. Nevertheless, when the plaintiff has set up a prima facie case and

the respondent has offered no proof of reject, the latter cannot demand that

the latter collect proof support its arguments without any reasonable

doubt.……..46”

of addition, the opinion held by international courts in most cases is that prima facie

evidence is sufficient. It was held that a naturalization certificate is prima facie evidence of

citizenship, with nearly unbroken uniformity. The Dominquez case also followed that

opinion, agreed on by the Spanish Commission of the United States. In the recent past, the

Mexican Claims Commissions in the Lynch and Pinson cases found enough prima facie

evidence. In both cases, the chairmen took the view that a “probatio diabolica” was to ask

for conclusive proof.

B. Admission by Defendant

The Tribunal decides on the merits of the case what constitutes sufficient evidence. Seeing

that the aim of the tribunal is to establish the truth, it is not conclusive that the defendant's

government has failed to challenge the citizenship of the claimant. This took place in the

case of Parker: The Commission denies, on the other hand, the argument that evidence

submitted by the applicant and not rejected by the respondent must be considered

automatically conclusive.…

C. The “Best Evidence” Rule

A common law principle, whose context is not precisely defined, is the so-called "Best

Proof" rule. The word has been criticized for that reason. The idea of evidence of the terms

of a contract by the document itself is undoubted to be accepted and copies of the documents

46 U.N. Reports, vol. IV, p. 39.

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must only be allowed when the original has been lost or destructed. Nevertheless, this

principle is not governed by international courts that are not bound by regional rules of

evidence. We also pursued it so far as primary or direct evidence is superior to secondary

or indirect proof. They were not bound to any strict rule but, even though primary evidence

could have been sufficient, they have accepted secondary evidence. The weight of such

evidence has almost always been openly assessed by international tribunals. Certified copies

of documents as evidence of the quality of the original document have been acknowledged

quite freely.

The British-Mexican Commission of Claims implicitly referred the Udell case to the

“relevant evidence” law. The British Commissioner referred to in Cameron's case,

determined by the same Commission, to the birth law, which the Registry of Births was the

best evidence in England.

D. Specific Methods of Proof

In an eclectic manner, writers on International Law have examined, both as regards their

admissibility and their proof power, the conduct of international tribunals in relation to

different forms of evidence and procedures for the establishment of the nationality,

including documentary evidence. Such eclecticism is reported of little use. The decisions

are made by ad hoc tribunals in large part and their action can only be regarded in a very

little way to have contributed to the development of proof rules by way of a precedent in

the absence of the main stare decision. Decisions on the admissibility and proof worth of

certain instruments and procedures have been taken on the merits of the individual cases

and must be considered in view of all the circumstances. The proof value of certain forms

of documentary proof such as documents identifying a person as a national of a State

depends on the value of the document itself and on the quality and quantity of evidence

required by the issuing authority to establish the person's nationality.

E. Evidence of Naturalisation: the Question of Fraud

The most commonly encountered problem of citizenship proofs is confirmation of

naturalization obtained by international courts. The naturalization certificate and the legal

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history of the proceedings are the best evidence in countries like the United States in which

naturalization trials are handled by the courts. Any evidence will only be accepted if it can

be shown to have lost or destroyed the certificate or record. This evidence may include

circumstantial proof and even witnesses ' testimony regarding the naturalization process. In

1868 Mantin's claim before the United States-Mexico Claims, Commission acknowledged

the latter.

A difficulty often faced by the Claims commissions was that it was decided that the claims

of a particular nationality could be validly challenged by the defending government if proof

of naturalization was clearly binding on an individual to whom a naturalization certificate

was issued. This is the so-called problem of the revocation of naturalization certificates. It

is one of the few issues in this field in which international courts have, as a precedent,

established a principle.

NATIONALITY AND RULES CONCERNING CONFLICTS OF CRIMINAL

JURISDICTION

1. Nationality as a Basis for the Extraterritorial operation of Penal Laws

While it is nowadays assumed that, even if the acts are committed by foreign nationals, the

exercise of penal jurisdictions by a State in connection with crimes within its borders is natural,

history has shown that this territorial concept has by no means always been taken for granted,

it has in fact only slowly substituted the principle of personal jurisdiction. But it can still be said

at present that the personal experience of this area has more receded than was the case in the

case of private international law, as the rules of the investigating State alone and never of the

offender's national laws have been applicable to litigation in relation to conviction, prosecution,

and punishment. The municipal law of the defendant is not usually applicable to specific legal

matters, where there may be preliminary problems, such as family law offenses, such as bigamy

or adultery, to be determined. Nevertheless, there have recently been reports that regional

criminal laws should be taken into account in matters of jurisdiction and punishment.

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In practice, international law will not preclude the former from taking legal action even in the

area of penal law as regards facts existing outside their borders, given that a State refrains from

exercising its sovereignty within the territory of another state. Nonetheless, that is not to suggest

that the competence of a state in these matters is reduced. This question was addressed in the

case Lotus by the PCIJ but unfortunately without committing itself to some particular point of

view. The use of criminal jurisdiction for crimes committed outside Canada should generally

be considered an exception, both from a global point of view as well as from a preferred criminal

law point of view. Nationality plays an important role here in that either the accused's nationality

(active nationality principles) or the victim's nationality (passive nationality principles) is often

seen as the basis for such an exception. Both of these concepts were discussed successively.

a) The Penal Laws follow the National Abroad (Principle of Active Nationality)

The rule of effective citizenship, which shows that the concept of individual law is not

completely obsolete in the field of criminal law, is to some degree compatible with the often-

established belief that citizens should not be extradited to foreign states.

A large number of countries in the world apply this principle. In its favor, two points are

often argued: (1) the nation's loyalty to its State and (2) the fact that a state's authority over

its own nationals may never affect other states.

Those two points are of a totally different nature, although often intertwined. The recourse

to allegiance (1) is quite optimistic because it is so closely linked to the concept of personal

authority that is discussed elsewhere. When used to demonstrate that the concept of effective

citizenship is admissible under international law, it presupposes that authority over its own

citizens domestically or abroad exercised by a State must as such be seen as an aspect of

sovereignty and that other States have to be regarded as such. The under 2 claim has a

negative character, on the other hand, that the rights of an individual fall within the sphere

of international law only in the event they are a national of an external state may be extracted

from the most basic rules for the treatment of aliens. The second argument thus suggested

should contribute to the conclusion that a State can also extend its penalty laws to cover the

status of stateless persons committing an offense abroad.

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b) The Penal Laws protect the National Abroad (Principle of Passive Nationality)

The passive nationality theory depends on a less secure basis than the active nationality

principle. The concept of security has been clarified as an application; however, in most

cases, a breach of the interests of a nation cannot be treated as an assault on their State's life

or health. At best, that could happen if the injury was inflicted on him because of his

ethnicity as an opponent. Penalties as a measure of self-defense would then be justifiable.

In certain laws in fact, in this limited sense the concept of passive nationality is adopted.

For others, the concept is more a product of the State's obligation, which has become

recognized by international law, to safeguard the rights of its citizens abroad. It is, however,

possible to ask if this is the correct point of view. If that defense does not comply with

relevant international standards that may include a duty to penalize actions directed against

foreign nationals, the national State may seek international remedies if it is going into

external territory.

2. Nationality and the Application of Remedies under International Law: Nationality as a

Requirement of the Application of Remedies under International Law

When such requirements have been breached, the present section should focus on the role of

citizenship in the implementation of foreign remedies. In this region, the diplomatic security

agency, understood more generally, operates; it not only involves demonstrations, requests for

compensation, etc. but also prosecutions before international bodies. The practice of such

defense may sometimes result in the use of coercive means, such as e.g. reprisals. The allying

issue of consular protection will not be addressed in view of the appropriate restriction of this

document, although here nationality also has significant consequences.

Diplomatic security is an old practice. But, strictly speaking, it started only in the first half of

the 19th century to be considered as the application of a legal remedy. The modern definition

of nationality was also established at that point and at the same moment it was not by chance

that a law appeared to have the nationality of the complaining State to allow a State to make a

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diplomatic claim on behalf of a citizen. on the one hand this provision reduced the scope for

diplomatic action and, on the other, increased it. This restriction was based on the fact that

intervention on behalf of foreign citizens was henceforth excluded; the extension on behalf of

subjects of the Complainant State even when living within Germany, was deemed admissible.

In Laurent (Eng) v US Umpire Bates still battled timidly for this extension, although they

understood that nationality was appropriate.

The importance thus given to nationality by international procedural law is closely linked to its

role in the system regulating the treatment of aliens, which could indeed be established through

international diplomatic practice and jurisdiction. Therefore, the later rule of the treatment of

an illegal act against a citizen as if it were an illegal act against his State has a close relationship

to the principles underlying the law governing the treatment of aliens as described above.

Given this interaction, there should be a clear distinction between the roles of nationalities in

these various fields. For example, a rule of substantive law (e.g. a treaty) is conceivable of State

A being obliged to negotiate in certain respects with the nationals of States B, C and D. In this

situation, the three nationalities a person may possess are unlikely to differ. Procedural law may

then stipulate that only the Government of B has the right to take action on behalf of B subjects

in the event of any infringement of this regulation. In the latter situation, everything depends of

course on who has special citizenship of the claimant State; it will in fact matter whether one

state is ready to take diplomatic action and another is not...

a. The Concept of Enemy Nationality

In an armed conflict, the (authentic) international police force is not known as groups that fight

to the death stand. Therefore it becomes a wonderful pregnancy to belong to one such family,

a warlike nationality. The Anglo Saxon and the mainland countries have long been held divided

into the legal position of the warlike country by a doctrinal comparison. In The Rapid (1814),

the Anglo-Saxon world, locus classicus, is a decision by the US Supreme Court that the

individual is an integral part of his State, in which not only nations but also their citizens are

opposed and should face each other as enemies. Consequently, any friendly interaction is

illegal between them. In accordance with the case law, English rule developed that this rule

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was also accepted by Grötius, that the declaration of war should not only be addressed to the

Sovereign, but to its subjects. The decision in Wells v Williams states that the declaration of

war may be even confined to a portion of the population. On the other hand, the theory of

Rousseau was often practiced in continental countries whereby only the nations are enemies

of each other, the people as such have nothing to do with that; the latter only become enemies,

accidentally, in war. The individual is dissociated from the State in this pattern of thinking only

the military, being a State body, leads the fight. This idea, originally promoted by the

mercenary army program, may not seem to be very plausible, but for humanitarian reasons, it

was kept alive to protect a noncombatant.

b. Nationality in Municipal Law

Specifications surrounding the designation or citizenship determination in local legislation are

described above. Internationally relevant laws on international nationality recognition are,

however, not municipal law as regards determining who is in the national class of example,

this is regulated by municipal law. Nevertheless, it is important to recognize nationality in

municipal law where municipal law specifically governs when the recognition of multiple

nationalities and when these policies have municipality law consequences.

It was argued that in municipal law, the effects of nationality depend only on municipal

legislation and therefore differ from one country to the next. When Weis and other authors

have been followed, citizenship is a relationship or status that confers reciprocal rights and

obligations. If one follows Randelzhofer, citizenship will always be a source of rights and

duties.

Specific implications of nationality in international law that seem to be of benefit to the citizen

at first glance, the State's right to diplomatic security, as well as a national entry requirement,

may be subject to State municipal legislation, but this seems unusual as many countries do not

express norms as a right or privilege that their nation that asserts.

c. National and Aliens

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In the classification of humans under city law, one should distinguish its significance as a

category throughout municipal law using nationality as a reason. This means that municipal

law is divided by the basic categories of natives and aliens as it applies to citizens. Naturally,

these groups can be further separated. Weitman describes four types of States that handle

individuals: (1) alien subject to prohibitions and restrictions: (2) aliens subject to certain limits,

(3) nationals subject to certain restrictions; and (4) nationals subject to legislation extending

favorite countries Sundberg Weitman.47

Many countries already have groups of persons for whom there are different laws: China is at

least three classes, which apply to the mainland China, Hong Kong, and Macau (without the

sensitive question of "Chinese" citizenship of the citizens of Taiwan). In most countries, the

national classification corresponds with the individual category.

There are, however, a few exceptions where people are not marked as' ethnic' or' alien' basic

categories. One example is that of the Cook Islands, which has no class of nationals or residents

under their municipal legislation. This describes a category of people with permanent residence

rights, but Cook Islanders are all residents of New Zealand and citizens.

It has been claimed that it does not necessarily mean that there are no citizens of the Cook

Islands for the purposes of international law, that the municipal laws of the country have not

defined who they are, and that protection of them has by agreement been transferred to New

Zealand. Perhaps the most important question concerns the international legal identity of both

the Cook Islands (and of Niue, as a newly-related state), as all individuals for whom those

countries can assert citizenship are undoubtedly nationals/people of New Zealand.

Nonetheless, the Cook Islands are a party to bilateral and multi-lateral arrangements by

themselves and have diplomatic representatives accredited in Wellington. It seems that

citizenship is meaningless for the purposes of the municipal law of Cook Islands and that

citizens cannot be separated into cook island nationals and aliens. The territorial competence

of the Cook Islands is equally applicable to permanent residents and non-residents, but the

47 See Sundberg-Weltman

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State does not, in or outside its territories, extend personal authority with respect to the class

of people usually making up its citizens, as such. New Zealand is alone.

Nevertheless, in the typical case, only one class of nationals is likely to be recognized by the

state wherever they reside. The principles of equality and the effective/genuine connection that

restrict the opposition of nationality to multiple citizens internationally but not in terms of the

treatment of their own nationals by government, even when outside of the country. Nationals

can, whatever their place of residence, be obliged to report and pay foreign income taxes, as in

the case of the USA, and be required to vote and perform military services in national elections.

Nevertheless, in many countries nationals are also naturally differentiated from immigrants or

permanent residents (usually the most favored category of foreigners according to city law).

They are nationals or citizenship rights. In principle, a state may extend the benefits of

nationality/citizenship to all individuals irrespective of nationality.

There can be no attempt at delineating municipal law's responsibilities, freedoms, rights, and

privileges of nationality. Furthermore, in the general areas, how States control their actions

vis-à-vis aliens, both as a purely internal matter or under agreements with other countries can

be decided. Non-discrimination is the overarching problem, so there is no question that

discrimination is applicable to those industries where ethnicity is relevant, and that it does not

necessarily give rise to equality or freedoms as a precondition for such matters. Such fields

include: civil and political rights, contract rights, Religious freedom, freedom of speech and

writing, access to education, access to courts and legal protections, jobs in professions,

licensing and fiduciary partnership rights, rights to social insurance and pension schemes,

heritance rights and the right to participate or work in a social or pension scheme.

The class of aliens is juxtaposed with nationals as a category, which may, in turn, become more

general categories of individuals in accordance with the municipal legislation of each State.

Permanent non-national residents tend to be the most privileged group: in some cases, they can

vote, typically work openly and travel freely, buy real estate, practice most careers and return

and live in the country. Nevertheless, they may also be required to meet certain of the national

obligations, for example the payment of taxes. It seems that they are excluded from compulsory

military service with certain exceptions, which is the only difference in treatment resulting

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from international law. In terms of allegiance and duty but on the basis of their territorial

relation to the State, rights, and responsibilities both are applied to them and not to a personal

link. There does not seem to be an obstacle to international law, however, with the exception

of the rights granted that apply to all persons irrespective of alienation and extended to resident

non-nationals under the laws of municipalities.

This represents the wide discretion with which states may handle aliens on their own property.

When they harass or mistreat aliens, including' grossly unfair discrimination or unreasonable

capture,' they can exercise diplomatic immunity or claim compensation through their state of

nationality. There is, however, no clear requirement to admit aliens and no commitment not to

expel or deport. There is also no requirement to give them national care once they are admitted.

Shearer points out that. The many States, including the African Asian Community, agree that

the national care standard ought to apply as foreign persons who enter implicitly obey the

norm, otherwise they could choose not to enter.48

It can also be claimed that aliens are a morally disadvantaged group or that they should be

aware that they join national territory in some respects. If not, it may seem superfluous and

indeed even unjustified to have diplomatic security. Although international law cannot

describe the contours of national allegiance to its own countries, it restricts the manner in which

states treat foreigners.

d. The Relation between Nationality as a Term of International Law and as a Term of

Municipal Law

The difference in and the connection between a nationality as a term of international law and

a term of municipal law should always be taken into account when considering the role of

nationality. The relationship becomes obvious if it is understood that the law may mean that

an individual is a member of the population of a particular state not only foreign but municipal.

Once rules are given, the authority concerned begins from the essential and established fact,

whether it be an international law or municipal law body, that the world is divided into

mutually independent countries each with its own citizens.

48 See Gabriel Starke

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Incidentally, it is worth noting that the traditional view of a state makes the presence of a

country, a sovereign government, and last but not least a nation contingent, for purposes of

international law. The representatives of such a group are therefore often described as the

composing factors of the State, but this term can easily lead to misunderstandings.

Whatever the case, for the writer and translator of the law the phenomenon referred to just now

constitutes what was rightly called the Italian publicists: a situazione giuridica originaria, a

concept not provided for by the statute, but which is a hypothesis. For as a legal translation of

this fundamental phenomenon or a legal transition of its dependent status into the community

of States can also be seen from the perspective of individual nationality. While nationality is

not, as can be seen later, the only connection between a person and groups of other individuals

that are internationally considered, its overriding significance cannot be denied at present.

If it is right to assume that there is a definition of nationality as an international law principle,

then international law itself, if only through the means of construction, must, of course, be

subject to the applicable' nationality laws.' The substance of these "laws" is to determine the

factual requirements are necessary to identify an individual as a member of a certain

community and thus similar to identifying methods applied in the biological domain.

The fact that nationality is not inherently the same as nationality as that which is applicable to

municipal law, does not mean that international law may not, in general, be used for deciding

who is national in a State.

CONCLUSION

The disparity between the definition of the concept of nationality as an international law term and

the concept of nationality as a municipal term can be said to be important. The rights and obligations

of States arising from a nationality status (i.e. the State of nationality in relation to other States)

shall apply for the purpose of international law only; for the purposes of municipal law, nationality

requires and gives reciprocal rights and obligations, a particular relationship between country and

state of nationality.

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The obligation of the State of nationality with regard to other States is that, unless a different

State is ready to admit it and to admit it to that territory, a national may reside on a territory of

its sovereignties.

The privileges of the State of nationality to exercise, in relation to other States, perpetual and

unconditional national security and other States, the duty to recognize this right to exist.

Nationality within the context of international law is a technical term designating the allocation

of the above-mentioned rights and duties with respect to other States by persons, known as the

nationals, in a specific State of nationality as citizens of that State. The relationship between

nationality and international law is usually the reference. Because international law rights as

they are currently defined are rights recognized or to be recognized by those subjects in the

absence of any supranational legislative authority, it may be more precise to speak of a

connection whose conferment upon States, by o, of the aforementioned rights and obligations

must be recognized.

The idea of nationality has evolved from local law and from the municipal conception of

nationality can be seen in this definition. Although terminological identity denotes an identity

of substance in the vast majority of cases, this doesn't necessarily apply. Although nationalism

typically correlates with nationality in municipal law, its scope in international law can be both

broader and narrower than that described by municipal law.

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REFERENCES

1. Art. 38(1) (4) of the Statute of the Permanent Court of International Justice.

2. GWF Hegel (1991) Grundlinien der Philosophie des Rechts. Cambridge edn., 366-371.

3. Graveson (1963) Comparative Aspects of the General Principles of Private International Law.

Recueil des Cours, p.13.

4. Weis (1956) Nationality and statelessness in international law, Stevens and sons. London p. 32.

5. Gabriel Starke (1994) Starke’s international law. Editor by Shearer, London, Butter worth’s, p.

3o9.

6. Weis (1956) Nationality and statelessness in international law. Stevens and Sons, London, p.

43

7. Crawford (2oo2) The International Law Commission’s articles on state responsibility.

Introduction, text, and commentaries. Cambridge University Press, p. 264.

8. Pellonpaa (1984) Expulsion in international law. A study in international alien’s law and human

rights with special reference to Finland, Helsinki. Suomalainen Tiedeakatemia, p. 21.

9. HF van Panhuys (1959) The role of nationality in international law – an outline. Leyden, AW

Sythoff, p.56.

10. Brownlie (1966) Principles of public international law. Oxford University Press, p. 3o1.

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