Sovereignty & Freedom in Nationality
Nationality Decrees Issued in Tunis and Morocco on Nov. 8th, 1921, Advisory Opinion, 1923 P.C.I.J.
Questions of nationality fall in jurisdiction of each state a) Diplomatic protection to nationals on foreign soil
b) Nationals have duties in relation to war & neutrality resting on customary law
c) Aliens on territory of state may be extradited & their home state must receive them
d) Some countries like Russia do not extradite their citizens
e) Nationality is the basis of exercise of civil & criminal jurisdiction
Difference from territory / sovereignty
No international law adjudication over nationality
Nationality assigns people to states
No other claimants for people unlike territory
No state can be forced to accept people as its citizens
Nottebohm case
Nottebohm , a German by birth, lived in Guatemala for 34 years, retaining his German citizenship and family and business ties with it. He however applied for Liechtenstein citizenship a month after the outbreak of World War II. Nottebohm had no ties with Liechtenstein but intended to remain in Guatemala. The naturalization application was approved by Liechtenstein and impliedly waived its three-year. After this approval, Nottebohm travelled to Liechtenstein and upon his return to Guatemala, he was refused entry because he was deemed to be a German citizen. His Liechtenstein citizenship was not honored. Liechtenstein thereby filed a suit before the International Court to compel Guatemala to recognize him as one of its national. Guatemala challenged the validity of Nottebohm’s citizenship, the right of Liechtenstein to bring the action and alleged its belief that Nottebohm remained a German national.
(Liechtenstein v. Guatemala), I.C.J. 1955, I.C.J.,
4 (1955)
Issues relating to citizenship are solely the concern of the granting nation. This is the general rule. But it does not mean that other states will automatically accept the conferring state’s designation unless it has acted in conformity with the general aim of forging a genuine bond between it and its national aim. In this case, there was no relationship between Liechtenstein and Nottebohm. the change of nationality was merely a subterfuge mandated by the war. Under this circumstance, Guatemala was not forced to recognize it.
Dismissed.
Nottebohm Principle
A state putting forth a claim must establish a locus standi for that purpose. Without interruption and continuously from the time of the injury to the making of an award been a national of the state making the claim and must not have been a national of the state against whom the claim has been filed.
European Convention on Nationality
Article 3 – Competence of the State
Each State shall determine under its own law who are its nationals.
This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognized with regard to nationality.
2 main criteria
Jus soli: "right of the soil“ commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. In Americas?
Jus sanguinis: “right of blood” is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state. Children at birth may automatically be citizens if their parents have state citizenship Or
a combination of the two and even due to marital relations
Presumption against statelessness
A stateless person is someone who is "not considered as a national by any state under the operation of its law". Some stateless persons are also refugees. However, not all refugees are stateless, and many persons who are stateless have never crossed an international border
Jus Soli prevents statelessness
European states have introduced limited and/or conditional jus soli provisions in their law. These are important steps towards the eradication of statelessness in Europe.
Several American countries also lack proper safeguards against statelessness because of the loss of nationality, especially in case of nationality acquired by naturalization.
Naturalization
The legal act or process by which a non-citizen in a country may acquire citizenship or nationality of that country. The rules of naturalization vary and typically include a minimum legal residency requirement, and may specify other requirements such as knowledge of the national language & a promise to obey and uphold that country's laws. An oath or pledge of allegiance is also sometimes required.
Effective Link Principle
Links with the state:
Immigration status
Residence
Domicile
Intention to Remain
Property Ownership
Limits of State Authority
State cannot deprive citizens of nationality
Israel: Nationality Law 1952
3. Nationality by residence in Israel
(a)A person who, immediately before the establishment of the State, was a Palestinian citizen shall become an Israel national with effect from the day of the establishment of the State if:
(1)he was registered on the 4th Adar, 5712 (1st March 1952) as an inhabitant under the Registration of Inhabitants Ordinance,
5709-1949…
Denationalization
Illegal except by due process of state
Denationalized citizenship is a concept which has emerged due to complex processes associated with globalization Put simply, denationalized citizenship is when communities have a stronger sense of belonging and identification with smaller cultural and social groups than with their nation-state. Denationalized citizenship suggests that citizenship can be practiced at a variety of scales and leads to a new understanding of the relationship between citizenship and the nation-state.
Citizenship Amendment Act
Allows illegal immigrant Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan,
Bangladesh & Pakistan who entered India before December 31 2014 eligible to apply for Indian citizenship.
National Register of Citizens
Exercise that will enlist all Indians citizens on a
‘national register’ by vetting their documentation., i.e.
Electoral roll(s), Land and tenancy records, Citizenship certificate, Permanent residential certificate, Bank or post office accounts, Birth certificate, State educational board or university educational certificate, Court records/processes, Passport. These documents must be dated no later than the cut-off date.
Detention Centre in Assam
Bangladeshi refugees
Rohingyarefugees
On 17 November, The New York Times reported that the government had arrested several hundred people due to the suspicion of them being foreigners. There have been 28 deaths.
Compulsory change of nationality
The Universal Declaration of Human Rights
Article 15 (2): No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
EECC: Registered dual citizens pose no security risk
Collective Naturalization
In the United States collective naturalization occurs when designated groups are made citizens by treaty (as Louisiana Purchase), or by a law of Congress (as in annexation of Texas and Hawaii)
Who is Enemy Alien?
In customary international law, an enemy alien is any native, citizen, denizen or subject of any foreign nation or government with which a domestic nation or government is in conflict with and who are liable to be apprehended, restrained, secured and removed.
In 1939, the United Kingdom had become a place of refuge for people who had fled Nazi persecution, including Jews and political refugees. The authorities interned these refugees with other enemy residents
Internment of Japanese Americans
During World War II there was forced relocation in camps in the USA of around 120,000 people of Japanese ancestry shortly after Imperial Japan's attack on Pearl Harbor. 62 percent of the internees were United
States citizens
Nationality of Corporations & Assets
No domestic laws assign nationality to corporations
Usually domain of private international law e.g. trading with the enemy, sanctions & taxation
Barcelona Traction, Light and Power Company Ltd,
(Belgium v. Spain) I.C.J. 1970 I.C.J. 3. On behalf of Belgian nationals who had invested in a Canadian corporation, Belgium sued Spain on the premise that Spain was responsible for acts in violation of international law that had caused injury to the
Canadian corporation and its Belgian shareholders.
Corporate Nationality
Does a state assume an obligation concerning the treatment of foreign investments based on general international law, once the state admits foreign investments or foreign nationals into its territory?
Ruling:
A state assumes an obligation concerning the treatment of foreign investments based on general international law, once the state admits foreign investments or foreign nationals into its territory.
It is only the party to whom an international obligation is due can bring a claim if a breach of an obligation that is the subject of diplomatic protection occurs.
Nationality of Ships
UNCLOS Article 91 (1): Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.
Article 5(1) of the Geneva Convention on the High Seas of 1958, requires that "the state must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag
Nationality of Aircraft
Convention on International Civil Aviation (also known as the Chicago Convention), all civil aircraft must be registered with a national aviation authority (NAA) using procedures set by each country. Every country, even those not party to the Chicago Convention, has a NAA whose functions include the registration of civil aircraft. An aircraft can only be registered once, in one jurisdiction. And owners must be nationals of registering state
Does not apply in war-time & not to state-owned aircraft
Extradition
The act by one jurisdiction of delivering a person who has been accused of committing a crime in another jurisdiction or has been convicted of a crime in that other jurisdiction into the custody of a law enforcement agency of that other jurisdiction. I
The Basis of Extradition
A co-operative law enforcement process by which the physical custody of a person (i) charged with committing a crime or (ii) convicted of a crime whose punishment has not yet been fully served, is formally transferred, directly or indirectly, by authorities of one jurisdiction to those of another at the request of the latter for the purpose of prosecution or punishment, respectively.
Is a government obliged to send the accused to another country?
Especially sovereign states?
Process of Extradition
Besides the legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction
Request to Extradite
one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction ("the requested state"). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process
Extradition by means other than Treaty
The principle of reciprocity states that favours, benefits, or penalties that are granted by one state to the citizens or legal entities of another, should be returned in kind.
Also governs agreements on extradition in the absence of treaty.
Where extradition is compelled by laws, the concept may be known more generally as rendition.
Bars to Extradition
Every extradition is a separate agreement.
However, countries determine the conditions under which they may entertain or deny extradition requests.
Failure to fulfill dual criminality
The act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested states.
Otherwise the extradition request may be denied.
Locus delicti
Latin term which means the 'scene of the crime.' It is the place where tort, offence, or injury was committed or the place where the last event necessary to make the actor liable occurred.
Territorial Principle
Subjective Territoriality: created over crimes committed in state even if completed abroad
Objective Territoriality: created when a single important element of the crime is committed in the state e.g. firing a gun
Objective jurisdiction is used in conspiracy, violation of antitrust & immigration laws
Objective Territorial Jurisdiction
If the offence was committed in the resident country its own courts have jurisdiction to try the accused & thus there will be no extradition if there is pending case before local courts.
Non bis in idem
This phrase signifies that no one shall be twice tried for the same offence; that is, that when a party accused has been once tried by a tribunal in the last resort, and either convicted or acquitted, he shall not again be tried.
Political nature of the alleged crime
Many countries refuse to extradite suspects of political crimes.
Political offence exception: a proviso which limits the obligation of a sovereign state under an extradition or mutual legal assistance treaty or statute. Such provisos allow the state whose assistance has been requested ("the requested party") to refuse to hand over a suspect.
Possibility of certain forms of punishment
Death penalty:
Torture, inhuman or degrading treatment or punishment:
Own citizens
Some countries such as Russia, China & Switzerland forbid extradition of their own citizens. These countries often have laws in place that give them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they prosecute and try citizens accused of crimes committed abroad as if the crime had occurred within the country's borders
Specialty Rule
A person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses.
Pakistan’s Extradition Treaties
With China, UAE, and USA to arrest fugitives from the law
Rendition is a form of informal extradition. Common since 9/11 & refers to arrest of terror suspects from 3rd countries to USA. If with consent of 3rd countries it is legal if without consent then breach of international law
Breach of Article 3 of UNCAT
‘No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ The US sends suspects to countries like Egypt, Saudi Arabia or Libya that practice torture. However,
Male captus bene detentus: that a person may have been wrongly or unfairly arrested, will not prejudice a rightful detention or trial under due process.
Extra-ordinary Rendition
Extraordinary rendition, also called irregular rendition, or
forced rendition, is the government-sponsored abduction and extrajudicial transfer of a person from one country to another. It is most prominently carried out by the United States government, often with the collusion of other countries: overall, 54 countries are known to have been involved with US extraordinary renditions
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