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Internationa Law Project (1)

Internationa Law Project (1)

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Published by Ashwani Aman

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Published by: Ashwani Aman on Mar 04, 2013
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Right to individual development in international law
 
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INTRODUCTION
The ultimate object of every system of law, whether municipal or international law, is the well being of the individual. Therefore, the individual also is often the object of internationalregulation and protection. Primarily, States alone are the subjects of international law.Therefore, the real position of the individual with respect to international law is that they aresubjects of international law. The rights and duties which individuals may derive may be either direct or indirect.As a rule, monarchs and other heads of the States, diplomatic envoys and even privatecitizens have certain privileges while in foreign territory. In such cases, law of nations imposeupon all States the duty to grant certain privileges to such heads of State, diplomats and the likeand the States, corresponding to this duty, make provisions in their municipal law granting such privileges. Therefore, international law is really the background of these rights. The sameapplies as regards special rights of individuals in foreign countries according to treaties betweentwo or more States. Such treaties do not normally create these rights, but they impose a dutyupon states to create such rights for individuals by their municipal law, and as a consequencethe states provide such rights to individuals by their municipal laws. These are some of theinstances in which international law indirectly impose rights and duties on individuals.
However, occasionally States may confer upon individual’s international rights and duti
es
‘stricto senso’., i.e, rights and duties which they acquire without
the intervention of municipallegislation, and which they can enforce in their name before international tribunals. Moreover,the various developments since the two world wars have shown that States are not only thesubjects of international law today. Nationality is the medium through which an individual can enjoy benefits from internationallaw. A state exercises jurisdiction over its national, travelling or residing abroad, remain under its personal supremacy.
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International law permits the exercise of such jurisdiction, and sets thelimits within which it can be exercised.
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S.K. Agarwal, ‘International Law’
- Indian Courts and Legislation
 
Right to individual development in international law
 
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 NATIONALITY AND THE LAW OF NATIONS
The concept of nationality is the link between the state and individual for the purposes of international law. It is important since it determines the benefits to which persons may beentitled and the obligations which they must perform. There is no coherent, accepted definitionof international law. Generally, the conditions for the grant of nationality are left to thedomestic jurisdiction of the States. As a consequence, there are conflicting descriptions of nationality under different municipal laws and the rights and duties attached to nationality varyfrom state to state.A
ccording to ICJ, nationality is “a legal bond having as its basis a social fact of attachment, a
genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.
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 It is through the medium of their nationality that individuals can normally enjoy the benefits of the law of nations. Individuals who possess no nationality enjoy no protection whatever if theyare aggrieved by a State. They have no means of redress since there is no State which iscompetent to take up their case. As far as International law is concerned, apart from moralityand the general provision is the Charter to respect human rights, there is no restrictionwhatsoever to restrain a state from maltreating to any extent such stateless persons. On the other hand, if an individual who possess a nationality s wronged, his home has right to ask for redress.It is for this reason that nationality is very important for the law of nations.Oppenheim has very rightly stated that nationality of an individual is the quality of being asubject or a citizen of a State.
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Therefore it is for municipal law and not for international law todetermine who is citizen. However, the Hague Convention (1930) has answered certainquestions regarding conflict of nationality. Even though it is for states to determine who their subjects are, such law must be consistent with international conventions and international
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The Nottebohm case(1995) ICJ Reports,
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Oppenheim, “International Law’, Vol. I, Ninth Edition.
 
 
Right to individual development in international law
 
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custom generally recognized with respect to nationality. However nationality in the sense of citizenship of a State must not be confused with nationality as meaning membership of certainnation in the sense of race, e.g. Englishmen, Scotsmen.In
 Mavrommatis
 
case, the Permanent Court of International Justice observed that “it is an
elementary principle of international law that a State is entitled to protect its subjects, wheninjured by acts contrary to international law committed by another state, from whom they have been unable to obtain satisfaction through ordinary channels.
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The right of protection extends tothe property of nationals as well. Further, if a national of a State is expelled from a foreignState, it becomes the duty of the former to receive back its nationals. The refusal to receive and
the expulsions of a State’s own nationals are incon
sistent with International as they may involve burden on other states which they are not bound to undertake. The International Covenant on
Civil and Political Rights lays down under article 12 Para 4 that ‘No one shall be arbitrarily
deprived of the right
to enter his own country’.
 Thus, in dealing with any International legal problems involving an individual, it is alwaysessential to know his nationality, the legal bond which ties him personally to a given State for many purposes. It is therefore inconvenient for International law to permit the individuals tohave multiple nationalities or no nationality. It is a goal of International Law that eachindividual possesses a single nationality. The Universal Declaration of Human Rights of 1948 provides under A
rticle 15, Para 1 that “everyone has the right to nationality.
 
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PCIJ Series A, No.2 at p.12

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