Trad def of International Law – State to State relationship

The Law of Nationality

Nationality - is the bond which unites a person to a given State,

which constitutes his membership in the particular States, which gives him a
claim to the protection of that State, and which subjects him to the
obligations created by the laws of that State (Fenwick, 253)

In international law, the term nationality is usually used in place of

citizenship, which is understood in municipal law as being possessed of the
full rights and privileges of membership in a political community.

What is nationality principle - the nationality principle provides that it is

for each State to establish its own standards for conferring nationality.

Link between state and the citizen

RA 9225 – Grace Poe Naturalization

What is naturalization? What is its effect in International Law?

Naturalization is the reception of an alien into the citizenship of a State

through a formal act on the application of the individual concerned.
However, absent a genuine link between the naturalized individual and the
State, a grant of naturalization need not be recognized by other states.

1930 Hague Convention on Conflict of Nationality Law provides the following

rules for determining a person’s nationality:

Article 1 - It is for the State to determine under its own law who are its
nationals. This law shall be recognized by other States in so far as it is
consistent with international conventions, international custom, and the
principles of law generally recognized with regard to nationality.
Article 2 - Any question as to whether a person possesses the nationality of
a particular State shall be determined in accordance with the law of that
State.

What is Diplomatic Protection?

A State is entitled to protect its subjects when injured by acts contrary to

international law committed by another State, from whom they have been
unable to obtain satisfaction through ordinary channels. By taking up the
case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his/her behalf, a State is really
asserting its own rights - its right to ensure respect for the rules of
international law.

What are the conditions:

1. The defendant State has broken an obligation towards the national

State in respect of its own nationals; and
2. Only the party to whom an international obligation is owed can bring a
claim regarding breach of that obligation (Nottebohm’s Case)

Principle of Continuous Nationality

The principle applies to claims for diplomatic protection. It requires that from
the time of the occurrence of the injury until the making of the award, the
claim must continuously and without interruption belong to a person having
the nationality of the State by whom it is put forward, and not having the
nationality of the State against whom it is put forward.

Principle of National Treatment

Under this principle, an alien cannot complain provided that he receives the
same treatment as nationals. An alien can only expect equality of treatment
under the local law because he submits to local conditions which benefits
and burdens and because to give an alien a special status would be contrary
to the principles of territorial jurisdiction and equality.

Discuss the case of Nottebohm Case:

Effective Nationality

A person having more than once nationality shall be treated as if he had only
one. The third State shall, of the nationalities which any such person
possesses, recognize exclusively in its territory either the nationality of the
country in which he is habitually and principally resident or the nationality of
the country with which in the circumstances he appears to be in fact most
closely connected.

Individual as Subject of International Law

Traditionally, only States may be regarded as “subjects” of International

Law, while individuals are mere “objects.” Subjects are the persons to whom
the law attributes rights and duties, while “objects” are the things in respect
to which rights are held and duties imposed. (Fenwick, 129).

An act of an individual becomes an Act of the State if it may be imputed to

the State. This is usually determined on the basis of the national legal order,
the law of the State whose act is in question. An act the performance of
which is not prescribed or permitted by the law of the State cannot
be imputed to the State.

Individuals may be regarded as true subjects of International Law.

Individuals are also directly and individually subject to obligations,
responsibilities, and rights established by International Law. Rights are now
assumed and obligations imposed directly on individuals.

SELF-DETERMINATION

International law has long recognized the right to self-determination of

“peoples,” understood not merely as the entire populations of a State but
also a portion thereof.

The people’s right to self-determination should not be understood as

extending to a unilateral right of succession. A distinction should be made
between the right of the internal and external self-determination. The right
to self-determination of a people is normally fulfilled through internal self-
determination - a people’s pursuit of its political, economic, social and
cultural development within the framework of an existing state.

A right to external self-determination which in this case potentially takes

the form of the assertion of a right to unilaterally secession, arises in only
the most extreme of cases and, even then, under carefully defined
circumstances. This pertains to the establishment of a sovereign and
independent State, the free association or integration with an independent
State or the emergence into any other political status freely determined by a
people constitute modes of implementing the right of self-determination by
that people.

CONCEPT OF THE STATE

A state is defined as “an entity that has a defined territory and permanent
population, under the control of its own government, and that engages in, or
has the capacity to engage in formal relations with other such entities.

Montevideo Convention on the Rights and Duties of States was a treaty

signed at the Montevideo, Uruguay on December 26, 1933 at the Seventh
International Conference of American States. It sets out the definition, rights
and duties of statehood which are recognized as an accurate Statement of
Customary International Law.

The facts of Statehood:

1. Permanent population
2. Defined territory
3. Government
4. Capacity to enter into relations with other States

A State becomes subject to International Law from the moment of its

establishment with respect to peremptory norms (jus cogens) and
obligations under Customary International Law. Neither the consent of the
new staet to be bound nor the recognition by other States is necessary for
the new State to be bound by the said norms and obligations.
May a State exist without the control of an effective government?

No. It must have an effective government that is able to carry out its duties
and able to assert itself without the aid of foreign troops. Exceptions:
Classification of States

1. Sovereign States - those enjoying full membership in the international

community. They exercise undivided authority over all persons and
property within its borders and are independent of direct control by
any other power.
2. Neutralized States - those upon which the status of permanent
neutrality in all future wars was formally imposed by a group of great
powers. Example: Switzerland and Belgium.

3. Dependent States - Those that have practically complete control of

their domestic affairs. They have “internal dependence” while they
have been subject to a greater or lesser degree of dependence upon
another State in respect of their control over their relations with third
States.

4. Confederation and Unions - associated for certain purpose.