PENESA, Blanche G.

194079
Public International Law 2020-2021
Worksheet 9

April 6, 2020
Nationality and Statelessness
Readings:

Outline Introduction to Public International Law, pp. 119-123

1930 Hague Convention on Conflict of Nationality Laws
Nottebohm Case, 1955
Barcelona Traction Case, 1964

Questions:

1. Define nationality.
- membership in a political community with its contaminant rights and duties.

2. Who defines a state’s nationals and by what criteria?

-It is the duty of each State to determine under its own law who will be its
nationals. This law shall be recognized by other States insofar as it is
consistent with international conventions, international customs, and the
principle of law generally recognized with regard to nationality.

3. Enumerate and briefly define the modes of acquiring nationality.

A. Birth - The two principles on acquisition of nationality by birth are:
i. Jus sanguinis, i.e., by blood; and ii. Jus soli, i.e., by place of birth.

B. Naturalization - This mode may be accomplished through marriage,

legitimation, option (election), acquisition of domicile, appointment to
government office, or grant on application. In the Philippines,
naturalization may be by judicial process, legislative process, election,
or marriage.

4. Enumerate and give examples of the modes of losing nationality.

A. Repatriation - Recovery of nationality by individuals who were
natural-born citizens of a State but who had lost their nationality.

B. Subjugation - When a state is defeated and its territory is annexed, its

nationals become subjects of the winning state.
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194079

C. Cession - When a state cedes its territory to another state, the people
found in the ceded territory become subjects of the accepting state.

5. What are the rules established by the 1930 Hague Convention on the
Conflict of Nationality Laws on resolving issues of multiple nationality?
The rules on Resolution of Conflicts in Multiple Nationality Cases. A
person having two or more nationalities may be regarded as its national by
each of the States whose nationality he possesses, and a State may not give
diplomatic protection to one of its nationals against a State whose nationality
that person possesses.

6. What is the principle of effective nationality?

If a person has more than one nationality, he shall, within a third State, be
treated as if he had only one; the third State shall recognize exclusively either
the nationality of the State in which he is habitually and principally resident,
or the nationality of the State with which he appears in fact to be most closely
connected.

7. How was the principle of effective nationality applied in the Nottebohm

case?
A person having two or more nationalities may be regarded as its national
by each of the States whose nationality he possesses, and a State may not give
diplomatic protection to one of its nationals against a State whose nationality
that person possesses.

8. In the case of a corporation which was incorporated in State A but whose

stockholders are nationals of State B, which state can bring the
corporation’s claims before an international tribunal?
Corporations are nationals of the State where they are incorporated. Thus,
it is the State where they are incorporated who can bring their claims before
an international tribunal, regardless of the nationality of the stockholders and
the percentage of shares they own

9. In relation to Question 9:
a. How was this question resolved in the Barcelona Traction case?
Where Belgium was not allowed to sue on behalf of its nationals who
were stockholders of a corporation because the corporation was Canadian
PENESA, Blanche G.
194079
b. Is there any exception to the general rule?
Where the harm is done directly to the stockholder the State can espouse
their claims regardless of the nationality of the corporation since the harm
was done primarily to their national and not to the corporation.

10. Define statelessness.

The status of having no nationality, as a consequence of being born without
any nationality, or as a result of deprivation or loss of nationality.

11. Enumerate some rights of stateless persons according to the Convention

Relating to the Status of Stateless Persons.
22 countries (including the Philippines) concluded a Convention Relating to
the Status of Stateless Persons, under which the contracting States agreed to
grant to Stateless persons within their territories treatment at least as favorable as
that accorded to their nationals with respect to (a) freedom to practice their
religion and freedom as regards the religious education of their children; [b]
access to the courts of law; [c] rationing of products in short supply; [d]
elementary education; public relief and assistance; and [f] labor legislation and
social security.

Treatment of Aliens
Readings:
Outline Introduction to Public International Law¸ pp. 132-143
Refugee Convention of 1951

Questions:

1. What is the general legal responsibility of a state towards aliens within its
jurisdiction?
PENESA, Blanche G.
194079
An injury to a citizen is an injury to the State. A State therefore has the
legal responsibility to protect citizens of other States coming into their
jurisdiction.

2. What is the general legal interest of a state with regards to aliens within its
jurisdiction?
The general interest of a state with regards to aliens within its jurisdiction
is ensuring that their own citizens are not harmed by the conduct of other
States or of foreign nationals.

3. Give some corollaries to the principle that flowing from its right to
existence as an attribute of sovereignty, no state is under any obligation to
admit aliens.
The state can determine in what cases and under what conditions it may
admit such. Once it admits aliens, under the international standard of justice,
which calls for compliance with the ordinary norms of official conduct
observed in civilized jurisdictions, aliens should be protected by certain
minimum standards of humane protection, however harsh the municipal
laws of a state may be.

4. What are the conditions that must exist for a state to be liable for damages
and injuries sustained by aliens within its territory? Explain each
condition briefly.
A state may be held responsible for:
a. An international delinquency – There must be: (a) Exhaustion of local
(refers to the State where the international delinquency happened)
administrative remedies; and (b) Representation of the alien by his
own state (this refers to the exercise of diplomatic protection) in the
international claim for damages.

b. Directly or indirectly imputable to it.

c. Which causes injury to the national of another state

5. What are the possible formulas for determining the compensation due to
aliens in case of expropriation of their properties? Explain briefly.
The possible formulas to use for computing compensation are:
(1) Hull Formula – Compensation should be adequate, effective, and
prompt.
PENESA, Blanche G.
194079
(2) Adequate Compensation – Adequate compensation simply takes
into consideration the fair market value of the property when computing
for how much compensation to give.

6. What is indirect expropriation?

occurs when the State subjects the property to restrictions that ultimately
amount to an expropriation.

7. What are the reasons for the requirement that an alien must exhaust all
available local remedies for the protection or vindication of his rights?
Two reasons for this requirement are (1) because the State must be given
an opportunity to do justice in its own regular way and without unwarranted
interference with its sovereignty by other States; and (2) because it avoids the
multiplication of claims, and allows the most suitable court, in terms of
practicality, to take a first look at the dispute.

8. What are the exceptions to the rule stated in Question #7?

The exception to the rule is if there are no remedies to exhaust, or where
the courts are corrupt, or where there is no adequate machinery for the
administration of justice, or where the international delinquency results from
an “act of State.”

9. What is a Calvo clause?

refers to a stipulation which states that the foreign party must rely
exclusively on local remedies and not seek any diplomatic protection.

10. What is extradition?

the surrender by one nation to another of an individual accused or
convicted of an offense outside of its own territory, and within the territorial
jurisdiction of the other, which, being competent to try and to punish him,
demands the surrender.

11. Enumerate six principles governing expropriation.

1. Based on consent, as expressed in a treaty manifested as an act of
goodwill.
2. Under the principle of specialty, a fugitive who is extradited may be tried
only for the crime specified in the request for extradition and included in
the list of offenses in the extradition treaty
3. Any person may be extradited
4. Political and religious offenders are generally not subject to extradition.
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194079
5. In the absence of special agreement, the offense must have been
committed within the territory or against the interests of the demanding
State.
6. The act for which extradition is sought must be punishable in both the
requesting and requested states.

11. In the Philippines, does the extraditee have the right to post bail? Under
what conditions?
Yes. An extradite have the right to post bail in the Philippines, provided
that the potential extradite must prove by “clear and convincing evidence”
that he is not a flight risk and will abide with all the orders and processes of
the extradition court.

12. Is the right to asylum recognized as a principle of international law? Are

there any exceptions? What is the rule in the Philippines?
NO. The power of the State to allow an alien who has sought refuge from
prosecution or persecution to remain within the territory and under its
protection has never been recognized as a principle of international law.

13. Define “refugee”.

According to Article 1A (1), 1951 Convention, a refugee is person outside
the country of his nationality owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is and is unable or, owing to such
fear, is unwilling to avail himself of the protection of that country; or who,
not having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.

14. What is the right of non-refoulement?

General Rule: No State shall expel or return (“refouler”) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership
of a particular social group or political opinion. [Article 33, 1951 Convention]

Exception: The benefit be claimed by a refugee whom there are reasonable

grounds for regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of that country. [Article 33, 1951
Convention]
PENESA, Blanche G.
194079