Post on 09-Aug-2020
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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.
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4. Weis (1956) Nationality and statelessness in international law, Stevens and sons. London p. 32.
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6. Weis (1956) Nationality and statelessness in international law. Stevens and Sons, London, p.
43
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10. Brownlie (1966) Principles of public international law. Oxford University Press, p. 3o1.